How Business Lobbies Helped Spike Transportation Tax Increases

Christina Nuckols at the Virginian-Pilot has described the role of business lobbies — in particular, groups representing Realtors, insurance companies, gasoline retailers and the auto dealers — in defeating General Assembly efforts to raise taxes for transportation. All of these groups felt threatened by one plan or another to stick them with the tab for higher transportation spending.

As Nuckols sums up the situation: “Every new idea that emerged for financing roads mobilized a new business group that felt it was being targeted.”

Kudos to Nuckols for digging deeper than the Axis of Taxes spin on the special section, parroted by so many in the Mainstream Media, that blamed obstructionist ideologues in the House of Delegates for the failure to reach an agreement. If only she had taken her inquiry one step further to observe that the Axis of Taxes legislative strategy was fundamentally flawed from the beginning.

The problem with the tax-raising schemes is that none of them established a rational nexus between those being taxed and those who would benefit from the construction of new roads and rail projects. Of course, those who were targeted for taxes were going to lobby as if their lives depended upon it.

Virginia’s transportation system clearly needs more revenue. The trouble is, lawmakers steadfastly refuse, for fear of alienating voters, to raise the gasoline tax. I can conclude only that Gov. Timothy M. Kaine and others in the Axis of Taxes made a political calculation that it would be easier to raise $1 billion through a mish-mash of narrowly targeted taxes than through a tax that established a direct connection between miles driven and taxes paid. I have greater faith in the voters: I think they would be willing to raise taxes on themselves as long as they were assured the funds weren’t going to be spent on politically driven projects that benefited mainly road builders, land speculators and politicians.

I believe that voters could be persuaded to support the following:

  1. Maintenance. Peg the gasoline tax to the cost of maintaining the state road network. If costs go higher, as many fear it will, the tax goes higher. If efficient VDOT management or devolution to localities can constrain the rise in maintenance costs, then taxes will stay stable. In either case, voters can understand — and accept — the connection between what they’re paying and what they’re getting. (Eventually, the gasoline tax should give way to a Vehicle Miles Driven tax, adjusted for the weight of the vehicle.)
  2. Congestion Mitigation. Use congestion pricing to address the issue of road “scarcity” during periods of peak demand. Promise voters that congestion revenues will be plowed back into congestion-mitigation investments in the same transportation corridor/district.
  3. Economic development. Use the General Fund to pay for economic development projects like U.S. 460, the Coalfield Expressway, U.S. 58, Interstate 73. Because such projects constitute an inter-regional transfer of wealth, they should compete with other priorities in the political bargaining process — not put on transportation funding auto pilot. Tap the state’s AAA bond rating to issue long-term bonds as necessary.

(Hat tip to Tom McCormick for pointing me to the Nuckols article.)

Update: It’s noteworthy that the Daily Press also has editorialized in favor of the gas tax. But there’s a world of difference between the DP‘s thinking and mine. To the DP, higher gas taxes are the quickest, easiest way to raise large amounts of revenue in order to Build More Stuff. To my way of thinking, a gas tax (to be supplanted eventually by a Vehicle Miles Driven tax) is critical to establishing a rational nexus between payers of the tax and beneficiaries of transportation improvements — a nexus that changes the economic calculation of driving and incentivizes motorists to curtail demand. Additionally, while raising more money (to Build More Stuff) is an end in itself to the Axis of Taxes, it is, to my mind, only one of many fundamental changes we must make.

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33 responses to “How Business Lobbies Helped Spike Transportation Tax Increases”

  1. Larry Gross Avatar
    Larry Gross

    Great Article. I agree!

    A quick search shows no group that opposed tolls and congestion pricing – and yet.. no joy at that one either.

    Why? Someone HAD to be opposed to it also. It seems like a no-brainer since the public generally accepts the idea much better than increasing the gas tax.

    A gasoline tax – perpetuates collecting money from everyone .. then using to political process for deciding who gets to spend it. It breeds unaccountable and unobjective winner-take-all decision-making.

    I DO like the creativity of the plan for maintenance but it is flawed

    There is no incentive/disincentive to land-use decisions that would result in more roads to maintain.

    So – a locality that chooses to approve high growth – gets rewarded by having all taxpayers pick up their maintenance costs.

    Reform must have a mechanism to hold a locality fiscally responsible for road costs due to it’s development practices.

    Subdivision road maintenance needs to be the responsibility of local jurisdictions. Let them decide if they want to do it with property taxes, HOAs, CDA, impact fees.. whatever – as long as they are held accountable by their own constituents for their land-use decisions.

    Right now – developer-friendly BOS.. essentially have other jursidictions taxpayers subsidize their road maintenance.

    In other words, there is no reward for other localities to more carefully manage growth if, in the end, everyone gets to pay the same tax for maintenance.

  2. Jim Bacon Avatar

    Larry, You make a very good point regarding maintenance: There is no incentive for local governments to take into account road construction/maintenance costs when they make their zoning decisions.

    That’s why it’s important to devolve responsibility/resources for road maintenance to local governments — or, at least, to the fast-growth counties. That happens to be the subject of the article I’m research right now. Stay tuned.

  3. Larry Gross Avatar
    Larry Gross

    With regard to Economic Development roads… which pains me just thinking about it…

    There needs to be some explicit criteria so that the category does not get abused and/or used in mischevious ways not intended.

    There also needs to be Regional involvement/ownership both in terms of voice support but financial support.

    The money available will vary year-by-year.

    I’d set it up like the TE funds.

    Have the localities compete for the funding. Have a way to objective rank them in terms of a point system based on objective cost/benefit, ROI data.

    And.. push those regions that will match funding or better .. to the top of the stack.

    Push proposals that essentially are back-door, sneak-type propoals.. without local support… to the absolute bottom of the list.

  4. Jim:

    I am not familiar with the “Vehicle Miles Drive Tax” concept.

    When you get a sec, please let me know.

  5. Jim Bacon Avatar

    Hi, George, I refer you to most recent post, “What Will Replace the Gas Tax?

  6. Anonymous Avatar

    The Virginia Manufacturing Association and Virginia Trucking Association strongly opposed tolls on existing highways.

  7. Toomanytaxes Avatar

    Economic Development – Why not combine some tax/appropriations changes and revenue bonds. The Commonwealth could change its laws to allow local jurisdictions to retain a percentage of the additional personal and corporate income generated by development from these highway projects. Those funds and a percentage of the increased real estate taxes could be dedicated (and nothing more) to the payment of principal and interest for revenue bonds that finance these new roads.

    What I have in mind is something similar to the PPTA, but with local governments acting as the private entity. This approach keeps money-losing projects from having access to the public trough of general revenues, while rewarding local governments by letting them keep a portion of the additional income taxes generated by growth.

    Question for 4:36. Did the VAM and VTA oppose increasing tolls on the the Dulles Toll Road for the construction of the Silver Line? Thanks.

  8. Ray Hyde Avatar

    “Virginia’s transportation system clearly needs more revenue. The trouble is, lawmakers steadfastly refuse, for fear of alienating voters, to raise the gasoline tax.


    “Because such projects constitute an inter-regional transfer of wealth, they should compete with other priorities in the political bargaining process — not put on transportation funding auto pilot.”

    YES, YES.

  9. Ray Hyde Avatar

    A gas tax only collects from those that drive. It collects more from those that drive more, and it collects more from those that drive larger, heavier, more powerful, and more wasteful vehicles. Indirectly, it collects from those that have their products delivered.

    Yes, you could say that pretty much includes everybody.

    So what’s the problem?

  10. Ray Hyde Avatar

    What does a vhicle miles driven tax buy you that a gas tax doesn’t?

    I suppose you could make it a graduated tax. If you drive less than 5000 miles per year it is one rate, morth than 10,000 miles per year it is 2.5 X more than 15,000 miles per year it is 4X and so on.

    Otherwise, it’s a dumb idea, fraught with fraud and abuse, and requiring a whole new set of tecnology and infrastructure. One of the poroblems with the London congestion charge is that is costs 55% of the take just to administer it.

    Surely you can’t be in favor of that kind of waste.

  11. Ray Hyde Avatar

    Maybe it’s time to go back to my auction idea. It would work something like this (Devil in the details, of course).

    NOVA is going to get one million new residents. There are six counties, or whatever. You auction off the growth in units of 50,000, with each county bidding the amount they are willing to pay NOT to have the growth.

    The low bidder gets stuck with the growth, but they also get all the money bid by the other five jurisdictions in order to pay for it.

    Problem solved. Everyone pays for what they get, and those that pay the least get the most.

    It’s the American way.

  12. Larry Gross Avatar
    Larry Gross

    re: “A gas tax only collects from those that drive. It collects more from those that drive more, and it collects more from those that drive larger, heavier, more powerful, and more wasteful vehicles. Indirectly, it collects from those that have their products delivered.

    Yes, you could say that pretty much includes everybody.”

    There are GIANT problems with this approach that are clearly seen right now with regard to roads and funding.

    1. – People who drive at rush hour – use much more highway capacity than those that don’t even though they might both pay the same exact gas tax. People who drive more at rush hour- come nowhere close to paying for what they actually use.

    2. – Collecting gas tax from everyone and allocating it back out to localities and projects that are decided NOT on an objective process that focuses on need but on political and often pro-development factors.

    3. – Localities that irresponsibly promote/accomodate development that fuels the need for costly roads – are actually rewarded for those wasteful practices under our current regime becausehaving more “lane miles” under the current allocation formula gets them more money.

    4. – We need performance-based metrics to drive funding allocations – not politics as usual. Raising the gas tax will perpetuate our current failed system. We’ll just build more mega projects that fail to deal with the root problems.

    Voters know this. Their elected representatives know that voters know – and that’s why there is no political “will”.

  13. Jim Bacon Avatar

    Ray, I regard a Vehicle Miles Driven tax as similar to a gas tax but more finely calibrated. More to the point, the gas tax is living on borrowed time. We will have no choice but to replace the gas tax eventually. As soon as hybrids and electric cars begin entering the auto fleet in large numbers, the drivers of conventional internal-combustion engines will bear a disproportionate share of the cost of maintaining the road system. The number of hybrids is still small and pure-electric vehicles negligible. Ten years out, the situation could look very different.

  14. Ray Hyde Avatar

    Larry, I never said that a gas tax is the only answer, Congestion taxes tohelp control rush hour driving are appropriate, however, I suspect they will lead to more sprawl and relocation of driving, not a reduction in overall driving, as an appropriate gas tax tax would do.

    I previously posted the graphs showing the experience in Ohio from increased miles driven and increased gas consumption, combined with increased gas taxes: result, far more revenue. And Ohio has increased gas taxes modestly but periodically since 1987: the last time Virginia saw a gas tax.

    I agree that the allocation method is screwed up, but that doesn’t affect the inherent efficiency of the gas tax itself. You can’t blame the tax for how we spend it.

    You assume that development fuels the need for costly new roads, and that roads fuel irrresponsible development. Why not just admit you don’t like development? I don’t like it either, but I am much less sure about what constitutes irresponsible, and who should decide what that is. If you think that allocation of road funding is a political process, what do youthink the allocation of growth is?

    Raising the gas tax perpetuates nothing other than the revenue to do something with. You can’t blame the tax for the fact that we have a failed system. If you really want to fix the blame for that, try looking at those who have fought the proffessional road planners advice for thirty years. It is the Marshall water supply problem all over again. Make sure nothing happens and then call it a failure on the part of others.

    There is no political will becasue everyone thinks we can get something for nothing. The only political will is to tax the guy behind the tree.

    When hybrids and electric cars enter the fleet in large numbers we willl have to recalibrate the fuel tax. Just because I drive an economical vehicle doesn’t make the value of my trip less, or road maintenance any less. If we all drive more economical vehicles the fuel tax needs to become proportionately higher. Your argument supports higher and wider fuel taxes, not a different tax with another bureaucracy, not to mention an entirely new set of hardware. A VMT tax is just dumb, when we already have that built in to the fuels tax.

    While you are at it, tax home fuels, too. There is no political will for that either, but I think it is a necessary part of our national conservation strategy.

  15. Larry Gross Avatar
    Larry Gross

    re: “You assume that development fuels the need for costly new roads, and that roads fuel irrresponsible development. Why not just admit you don’t like development?”

    I don’t assume this. It is a fact.

    I’m not opposed to development either as my previous posts about population growth and the need for people to have a place to live.

    What I am opposed to is building homes without the necessary infrastructure to assure a reasonable level of service for everyone who chooses to live here.

    Development “on the cheap” is the issue and the solution is not to stop development but to make development pay it’s own way.

    The argument that making new buyers pay for infrastructure is bogus.

    It’s like arguing that the rest of us should pay for extra bathrooms or bedrooms for new homes.

    Because that is exactly what is going on. People can “afford” much bigger houses because – they are NOT paying for the necessary infrastructure.

    Growth is a done deal. As long as there are jobs here, people will come and they’ll need a place to live.

    There is nothing in that equation that convinces me that we should accomodate those people in patently stupid ways.

    People needs roads. They need schools and fire/rescue and libraries.

    Inviting them in by selling them houses without the necessary infrastructure does a disservice to them and to the folks who already live here.

    This is what I am opposed to. DUMB growth.

  16. Larry Gross Avatar
    Larry Gross

    re: charging for VMT.

    Even charging for VMT will not differentiate between rush hour driving and non-rush hour driving which is the primary issue with congestion these days.

    The easiest, quickest “fix” that can be implemented in less than 5 years is congestion pricing.

    If.. VMT technology comes along.. fine..but let’s not wait for something that is probably a decade or more away.

  17. Ray Hyde Avatar

    Larry, I don’t disagree with you. Obviously if someone comes along and plops down an entire new community, then the builder should be expected to plan and provide for what is needed for a community, and the buyers should expect to pay for it. (OK, maybe a little of it comes out of the builder’s profit margin.)

    But I don’t think that’s the issue. Infrastructure is a red herring. Even if someone came forward and paid for every conceivable amenity, including a new highway lane all the way to the city and a new train station, the local people would still object. The same old faces would show up at every hearing, and they would fight it tooth and nail and demand still more proffers until the project was bankrupt.

    This has already happened, and there have been court cases the developer won because the facts showed the locality was bargaining in bad faith.

    We agree that huge increases in capital costs for infrastructure due to sudden growth are an unfair strain on local residents. But you can’t credibly fight every proposed plan or increase in infrastructure and then turn around and say, no growth until we have infrastructure.

    You can’t have an APFO without a plan for APF that can be approved.

    Sure, a coomunity without a firehouse is a disservice to the neighboring communities, but if there is a new firehouse, it is equally a partial benefit to the neighboring communities.

    You can’t credibly forestall growth for thirty years by denying infrastructure and then claim that the “sudden spurt” of growth is the cause of all the community’s problems.

    You can’t credibly claim that housing doesn’t pay its own way, and then say that new housing does a disservice to existing residents. At least part of the infrastructure needs we have are due to the fact that we have consistently refused to pay for them when needed. A lot of our needs are for rebuilding worn out stuff that has nothing to do with new residents.

    I agree with part of what you say, but I think you’ve got the helm so hard over that the rudder has stalled out. All you get is a lot of turbulence but you’ve lost conrol over where you are heading.

    Where do you draw the line between a 33,000 home CPAM, and one new infill home on a block with existing services that are 40 years old? What do you say when the owner of that lot has paid taxes (for no services) and provided a spot for sandlot baseball all that time?

    “Oops, sorry, we held a meeting last year and your building right is expired. All new setbacks have to be two hundred feet. By the way, where were you? You could have voted your (one) interest, you know.”

    Where do you draw the line between a family with four children in school and three young adult couples with six cars sharing costs on the same house?

    Where do you draw the line between existing residents getting hammered with sudden new costs, and new residents getting hammered into paying for deferred costs from the previous residents?

    I agree with part of your argument, and I agree that grwoth is a done deal: those people have already happened. But I also think the postion of many existing homeowners is well described by the Boston Globe quote I posted. It is cynical, self-serving, circular, camoflaged in green, and there is no real negotiation space, unless it is in some other jurisdiction.

    Unless we can have a plan we agree on, all growth will be dumb growth, and we will have no one to blame but ourselves. Because it is the existing residents that get to make, (or more likely, refuse to make) the plans.

    When we do make the plans, they are designed to prevent growth, not to set a price on it. And, if our duly elected representatives do approve a project, well, they are not representing us, but pandering to special interests.

  18. Larry Gross Avatar
    Larry Gross

    re: “But I don’t think that’s the issue. Infrastructure is a red herring. Even if someone came forward and paid for every conceivable amenity, including a new highway lane all the way to the city and a new train station, the local people would still object.”

    This simply not true. In the Fredericksburg Area – it is now standard practice for developers to go public with their plans and hold community meetings BEFORE they submit a rezone.

    That’s because the FIRST question they are asked at the rezone is “what did the public think of your plans”.

    It’s not a perfect approach but basically in our area – if you can’t sell the project to the public – it’s a no go.

    People DO understand that population growth is going to happen and that folks do need a place to live.

    People also understand that the developer cannot provide more infrastructure than they can recover from setting their home prices to be competitive so that they will sell.

    But you ask.. how to plan ahead.. for development.. and claim that there is no way to really know… and that is not true either.

    When a jurisdiction does a COMP PLAN they DO KNOW – they’re saying up front – “this is WHERE we are going to develop and THESE are the DENSITIES that we will allow”.

    In other words – they DO KNOW how many people they are preparing to have homes built for – therefore they know – how many school seats, how much water/sewer/ libraries, fire-rescue .. AND roads.

    Each home generates 10 trips per day. If you are going to say in your Comp Plan that X number of people will be acomodated then you DO KNOW that 10 times X is the number of trips per day – and you know how many Vehicles per day one lane of road can acommodate – and so you DO know how much more road will be required to provide capacity for those folks.

    This is EXACTLY what the CPAM study showed. It assume a certain intensity of land use that, in turn, would result in a certain number of people that in turn would result in a certain number of auto trips per day – which would in turn add certains levels of traffic to certain roads which would then result in KNOWN levels-of-service impacts.

    This is NOT rocket science but it DOES require systematic planning for growth.

    What you seem to be advocating is the status quo where developers and developer-friendly BOS (like the Loudoun County BOS) – actually do NOT want to DO the planning.. and … actually resent someone like VDOT coming in and producing the actual numbers that will be the result of adding people.

    The public does not expect developers to be bled until they go broke but they DO expect levels-of-service for infrastructure to be maintained at reasonable levels and for funds collected to assure that that is done.

    They are sick and tired of hand-waving and smoke & mirrors from developers and developer-friendly BOS who don’t want the public to know what the impacts are.

    In my opinion – this is not only irresponsible but corrupt – that does a disservice to the public – ALL of the public – existing residents AND newcomers.

    Our responsibility is to accept growth as a reality but to insure that we end up with a place that we all want to live and work in and not some hell that we want to escape from.

    The very first step is to collect from each person – the fair and eqitable costs to provide them with infrastructure.

  19. Ray Hyde Avatar

    “People DO understand that population growth is going to happen and that folks do need a place to live.

    People also understand that the developer cannot provide more infrastructure than they can recover from setting their home prices to be competitive so that they will sell.”

    I hope you are right, but that is not my obsrvation, at least not around here.

    Here the commnent is likely to be, “We have to stop all this growth.”

    With no qualifiers.

    I’m not advocating anything, except that we stop looking at things the way we have. That we stop with dogma and consider any new idea as a potentially valuable contribution, however much we may dislike it at first.

    For example.

    “When a jurisdiction does a COMP PLAN they DO KNOW – they’re saying up front – “this is WHERE we are going to develop and THESE are the DENSITIES that we will allow”.

    Presumably they do this based on some rationale, typically, it saves the county money.

    So, what happens to everyone outside the areas we will develop?

    Aren’t they acting as bankers, reserving land for the future, while others get to cash in now?

    What happens when you have a comp plan that calls for x development. People inside the planned development area make plans depending on the comp plan guidelines, and they (rationally) wait untilthey feel the time is best for them to act. But, Lo and behold, before that happens the proposed density becomes x/5?

    What happens when the comp plan calls for a service area and those services are NEVER provided, and in fact the service area itself is deleted from the plan?

    You just can’t say that, and then oppose everything that tries to get built. You can’t say that when you know that the value will exceed what a house can sell for. You can’t say charge each person their fair and equitable costs, and at the same time say homes don’t pay their fair share, and still fight tax increases.

    That doesn’t even qualify as circular logic. It’s a deliberate stalemate.

    So, tell me what the fair and equitable costs are for providing infrastructure, and I will pay it.

    Meanwhile, tell me what the fair and equitable costs are for providing green infrastructure and land banking services, and I’ll send a bill.

  20. Larry Gross Avatar
    Larry Gross

    It’s difficult to parse the issues here.

    Land can be designated NOT for development.

    Just because some land is designated for development does not mean all land must be designated AND this inlcudes land that designations were changed on.

    Time goes by and what looked like a good idea 20 years ago – may no longer be.

    WHERE land HAS been designated – then recovery of infrastructure costs – especially those that can be quantified for school seat and specified level of services for fire/rescue/etc.

    The costs CAN be allocated even though there are other costs – that until we come up with better paradigms.. are harder to quanitfy.

    This is not circular logic at all – this is straight-forward .. simple logic in my mind – as long as we work to keep the issues themselves understandable.

    With regard to Green Infrastructure – from my view – this breaks now into two issues.

    One is runoff from a property – which we should not and do NOT pay people to NOT pollute but rather we tell them that they cannot pollute or we give them a limited ability to pollute so I think the Green Infrastructure is wrongly framed in this regard.

    I simply don’t think you or anyone else has the “right” to pollute the Cheseapeake Bay to start with and I’m certainly not willing to pay you or anyone else to NOT pollute it.

    Now, if we’re talking about “viewscape” we’re needlessly conflicting undeveloped land and your perceived right to develop it …. with the reasons given by some as to why that land should be kept “green” looking.

    I don’t know about your land but I know in my county – people are free to cut all the trees on a parcel as long as they follow BMPs on the runoff.

    But if you are saying that because you will not (or cannot) put a subdivision on a “Green” hillside and so therefore you’re entitled to compensation –

    …. nice try… 🙂

    Every landowner could make that same argument – even the guy who owns a single family home.. in a subsdivision and wants to tear it down and replace it with a duplex or townhouses…

    Where would this stop?

    Would we end up with a system where any land can be built to any use unless everyone else essentially pays the guy not to develop that land more intensively?

    Isn’t this essentially a “back door” approach to the same issue about whether or not it’s fair or unfair to allow land to be developed more intensely in the first place?

    In other words.. you want someone to pay to keep the land from being developed – to the level you desire to develop it.

  21. Ray Hyde Avatar

    “Every landowner could make that same argument – even the guy who owns a single family home.. in a subsdivision and wants to tear it down and replace it with a duplex or townhouses…

    Where would this stop? “

    You are distorting my argument again. You would have had the right to subdivide, because you had a development right. It was taken away.

    The guy with a SFH in a subdivision does not have that right because he already used it, or rather he has that right and he is living in it.

    But, you raise an additional issue. In Fairfax, and many other places, valuations and taxes have been increasing many times faster than income. Eventually, things become so expensive that you cannot afford to hang on to what you own.

    Normally we see this happen in poor neighborhoods that get rehabilitated and gentrified, but it can happen anywhere. My supervisor has told me that it is his intention to have it happen here.

    So, what are the options? Either you move out to less expensive digs somewhere else, if you can find them, or you settle for a smaller home and homesite. If none are available, peope start agitating to subdivide, one way or another. Room mate regulations are relaxed, auxiliary homes are allowed, mother in law apartments, and duplexes. And finally lot subdivisions, townhouwses or multifamily units come in.

    All of this is against the objections of thos existing homeowners who live in a different place in their lives or finances. There is a constant angst against change, and all sorts of arguments are raised. Some of them have partial merit, but mostly it boils down to we don’t want change.

    The same exact thing happens to farmland in the countryside. Eventually you simply cannot afford it. But,unlike the intown subdivisions, almost no one else can afford it either. So the result is gentrification of the countryside.

    I don’t know what the right answer is, but I know from experience that once the economic picture reaches a certain state, there is no way the existing rules can be supported, so they get changed eventually. Frequently it is too late for many, and they get economically crushed by a rule that is later changed to benefit someone else.

    To say “you want someone to pay to keep the land from being developed – to the level you desire to develop it.” is twisting my words. What I’m saying is that if the regulations that prevent development are for the benefit of many, and the costs fall on few, then the many are receiving a benefit they are not paying for.

    It is no different from your arguments about long distance drivers. Call that benefit what ever you want. If the land is being held in reserve due to the comp plan, then the county is land banking. If the benefit is lower infrastructure costs (to those that ever get infrastructure) while the reserved land gets no benefits, then the county is borrowing those infrastructure savings without paying interest.

    I will accept either answer: let me take the risk and expense of development (to the extent that it has already or once was promised, this isn’t a CPAM) and let me take the profits. OR impose development limitations for the benefit of all, but let them recognize that those benefits are not free, they have to be paid for, jsut as if the development restrictions had been imposed befor they purchased their lots.

    If that had happened, then larger lots or more public open space would have been required, and that would have raised their cost of entry. Instead, having not paid for those large lots, they are now for allintents and purposes expropriating them, without taking on any of the responsibilites they would otherwise have had.

    When I talk about runoff, I’m not talking about pollution. I’m talking about flood control, and clean water supply. We built places that have too much runoff and are subject to flooding. We could go back and retro fit those places withthe same retention systems that are imposed on new construction, but we have not done that. Instead, we set the new regulations artificially high, so that it ameliorates problems previously caused by others. The new restrictions include runof retention for new construction and outright denial of new construction that would otherwise have been allowed. Those that benefit from this get it at no cost.

    Even worse, these rules wich have a real safety content are cynically used to prevent development. Take a guy with 100 acres and 20 building rights. Flood plain considerations and steep slopes effectivley X out 5 of his ostensible building rights. But then we decise we want more protection downstream so we double the size of the flood plain and take out 5 more building rights.

    Maybe, there is some way to increase the density on the remaining land and still have adequate stream protection, and not violate the originally allowed gross density.

    But that isn’t what happens. What happens is that the rule is used as an excuse to eliminate building rights, over and above its effect for protecting the streams. It is cynical and insidious. Those people downstream now get two benefits, cleaner water, and higher property values through market restrictions, and who gets stuck with the bill?

    He does not have the right to pollute, or to flood. He does not have unfettered right to use his property as he sees fit. But neither do those who happened to exercise the same rights and activities earlier have unfettered rights to add fetterations to his.

    “Would we end up with a system where any land can be built to any use unless everyone else essentially pays the guy not to develop that land more intensively”

    You are twisting my argument again, and I have explained this before. I think that Oregon addressd this issue fairly. You bought your ten acre lot with the expaectation that five acres could be subdivided. Then they changed the rule.

    Next door, you neighbor then bought ten acres after the rule change. He has no right to expect the same rights that you have, and he also has no right to expect that the ruelws that apply to him should apply to you retroactively.

    And, the difference betweeen what you bought and paid for and what he bought and paid for will show up in the price and the value.

    If you never exercise your subdivision right and later sell the land, then the new restriction would apply to the new owner. Or, you could have the new restrictions phase in over a number of years, say ten or fifteen.

    Say you bought a lot for a retirement home, but you aren’t ready to retire yet, and you can’t afford a second home. A rule change could leave you out in the cold, but a rule change with enough tme delay would allow you to complete your plans without harm, in which case you would not be deserving of compensation.

    This is essentially fair, it does not mean the government can never make rule changes. It does not mean that everyone gets compensated for every percieved slight or expense. It only means that the government must have enough imagination to understand it is not to anyone’s benefit to stomp on a few for the benefit of many.

    If the winners cannot compensate the losers and still come out ahead, then the argument for a public benefit fails the test.

  22. Ray Hyde Avatar

    What happens to the building right you never used when you sell the property under the new rules? It goes back t the county where it meets their goal of limiting growth. If the new owner decides he relly want it, he can buy it from the county, in which case the payment would go towards providing additional infrastructure.

    If the county doesn’t want the growth they can refuse to sell. In that case the owner could buy one from someone else who has one that has not expired. In this case the county still meets its goal of preventing growth, only they lose control over where it happens. Since there is no new growth that wasn’t already planned, presumably the infrastructure costs are already in the plan. There will be a disconnect in time and place, but the government is larger than life and this should not be too onerous a burden compared to what could happen to one of its citizens.

    This meets all of your arguments, I think. People recognize that growth will occur. Unplanned growth collects money that helps pay for it. The government can enact regulations that prevent growth, but not retroactively. Planned growth is recognized as a benefit, and the costs for that can be paid for by whatever means is fair to all.

  23. Larry Gross Avatar
    Larry Gross

    tougher new environmental regs are literally water under the bridge.

    Once we know that something is causing harm – we have to prevent further harm. Allowing previous projects to not require upgrading is, in my mind, a middle ground grandfathering.

    I don’t think we should blame someone for doing what they were supposed to do – then go back after-the-fact and penalize them for what the regulators didn’t know either.

    That, in my mind, is MORE fair than requiring retrofitting of older projects.

    So .. we change course now.. for what we know now.

    But the rest of what you are saying… in many, many, many, many, many,
    seems to be, in essence, that until and unless every landowner can fully develop their land to its highest and best use – that it’s unfair and in your mind … at least ought to be illegal if you not not compensated for the “gap” between what you have now and what you’d have if you developed to the highest and best use.

    Everything you say.. seems to flow from that root belief?

    Right? Am I wrong?

    If this really sums up all the words – then let’s focus on that concept and not expand it out to every possible twist and turn.. that flows from that root belief.

    If I have got it wrong – could you please put in a succinct statement the essence of your advocacy?

    I’m basically trying to imagine a world where there is no zoning and every development is an administrative proces s to assure that code is met.

    but please.. distill down to the essence your fundamentals …

    then we can .. either agree or disagree and not continuously replow the same ground over and over with each new “example” of injustice.

  24. Ray Hyde Avatar

    You seem to think that I am an advocate for development, and that is not true.

    I don’t think that every place will be developed to its highest and best use. If there were no zoning and such a situation was allowed, not everyplace would be developed. The reason is that housing prices would fall and there would be many places where it no longer makes sense to put in housing, or anything else, because there was either no market or no profit.

    On the other hand, as far as I can see, every time development is restricted, for whatever reason, the benefit flows to people other than the restrictee. It creates two classes of people. The benefit shows up in higher home values, less traffic, fewer school seats, less runoff less pollution etc. etc. You could argue that the restrictee also benefits from these newly created values, but he shares these benefits and endures all the costs.

    And they are not necessarily one time costs, but continuing costs, so his contribution mounts up over the years.

    My position is that this creates an artificial imbalance in the market, it results in him essentially working for others for free, and allows others get to continually capitalize on him being kept out of competition and better living conditions that they might otherwise afford. They are not paying for what they get.

    I believe the government has an obligation to recognize this, and that, in fact, it has begun to do so. The court case in South carolina is an example where the court held that the government does not have the right to do as you suggest. The proposed new Albemarle rules are an example as are TDR’s and PDR’s. So is current legislation that will make it easier to sue and outline or define some of the points I have made about what constitutes valuable property.

    All of that being the case, it is time to stop being so selfish and fat headed about how we steal from our neighbors. I believe the government can be fair and ethical and still have the authority it needs to plan growth, and introduce new rules without breaking the back of either the restrictee, the general public to whom the benefits accrue, or the public coffers.

    I think the example I provided concerning your lot and loss of subdivision right, compared to someone who comes along later and makes his purchase under different conditions is clear, and fair to everybody. It does not end up with a system where any land can be built to any use unless everyone else pays the guy not to develop that land more intensively.

    You believe that new rules are new rules, water under the bridge, tough tacos. Apparently you are not incensed at your loss of building right and the equity that goes with it, and that is perfectly OK. You have the right not to use it, or give it away if you like, and take the tax benefit.

    But the mere fact that you have those rights also indicates that these are valuable property and cannot be taken without compensation. The constitution says so, the courts have said so, and the ten commandments say so, twice. All we are arguing about now is a matter of degree.

    What I am advocating is that, as ethical people and conservationists, we stop making our arguments on expedient legal niceties and instead make our arguments based on fundamental values that most people recognize. I believe we have more to gain by being fair and ethical, and will realize a better result than we will by becoming associated with eco-terrorists, slick lawyers, flimsy arguments, and bureucratic pig headedness.

    Based on the current legal status, which is that a taking has not occured until substantially all value is lost, some environmentalists have openly advocated a strategy of incremental takings. They do this knowing that they can get more and more of what they want “for free” and if they finally get slapped down on the last little nibble that results in a taking, well, all they have lost is that last nibble.

    They do this, knowing full well that the extant court ruling is very narrow, and the the process and costs are such that a suit is unlikely. Therefore, they are willing to take what they can get with impugnity.

    The argument is that since a taking is not defined as a taking unless yuo take everything, we are free to take all but a little bit. Or as you say, it was done legally. You cannot adopt such a strategy without recognizing that you are still taking, albeit incrementally. Again, it is a matter of degree, not an issue over what is happening.

    As a conservationist, I’m ashamed to be associated with such people. If I thought that the environmental and historical and architectural regs were “pure” I might not feel that way. So, one way to purify them is to stop telling ouselves and everbody else what is fair. We need to stop making the arguemtn that “OK, this is unfair, but it is water under the bridge, and it is legal”.

    I feel the same way about continually spending my money and efort to support environmental desires for others as I do about spending my money to support development desires for others: they are both wrong.

    You think the latter is wrong and the former is OK. I think that is an indefensible and self-serving position that does not advance our goals, and puts us in a weak bargaining position.

    We agree to disagree.

  25. Larry Gross Avatar
    Larry Gross

    re: “I feel the same way about continually spending my money and efort to support environmental desires for others as I do about spending my money to support development desires for others: they are both wrong.

    You think the latter is wrong and the former is OK. I think that is an indefensible and self-serving position that does not advance our goals, and puts us in a weak bargaining position.”

    We agree to disagree.

    I do appreciate the further explanation but if you were King .. what would happen?

    That’s why I asked the highest and best use question.

    If you’re not advocating that .. for every landowner… then what?

    What is your basic bottom-line on the landowner/development condundrum?

    For the record – I do not believe that anything that benefits the environment justifies any land restriction.

    But here is an example of what I do support. 100 years ago – it was “OK” to dump sewage, toxic wastes, etc into creeks and rivers.

    At some point – it was decided that tremendous harm was being done and it had to change.

    At that same point – according to me – it was justified to essentially change the terms of the “unwritten contract” that landowners could do as they pleased because it was a “vested right”.

    According to you – if it was a “right” .. then no matter what was discovered later in terms of harm.. it STILL is not justified to tighten the regs because you’re “taking” away the net LOTs that someone could develop by preventing them from build on slopes that they used to be able to build on.

    In other words – you have a right to do things on your land that result in runoff harm to public waters and the fact that harm is being done is subordinate to the fact that – you had that right previously.

    I don’t think you ever had that right. I think you were allowed to do what you wish AS LONG AS IT WAS DETERMIMED that your practices did not result in harm – and that means if they know more now than they did then – it’s still the same deal.

    You have a “right” to not do harm not to do what you were always allowed to do.

    but please.. on the landowner/rights issue – separate from the environmental issue – please lay out.. if you were King .. what kind of a system/process we would have in the NoVa area.. including Facquier…

    I understand your complaints.. I don’t see the remedy.

  26. Ray Hyde Avatar

    Come on, Larry, now you are just being unreasonable.

    Have you ever been to the vertical assembly building at Cape Kennedy, where they assemble the space shuttle? The thing is huge. It is so big that clouds form, inside the building. The letters that signify the manufacturer onthe overhead crane are thirty feet tall, yet from the floor you can barely read them.

    It is built in a swamp. In order to support it, they drove ten thousand pilings a hundred feet into the swamp.

    There are environmental problems, and there are engineering problems. When I built my house in Alexandria, I was at first refused. The reason given was that I was in a area of marine clay, which won’t support a house, and will destroy the foundation.

    The map clearly showed that the marine clay area followed the streambed in the direction of my lot, but that it ended more than a mile away. I knew that my lot was mostly rock.

    I hired a soils engineer to coem and test the ground, but he could not even get his drills in the ground. One broke off, and he had to bring in another machine to retrieve it. In the end, he wrote a report that stated i did not have a soils problem.

    The county rejected his proffessional report, based on nothing more than their opinion. They had never been to the site.

    The soils engineer was incensed.

    As a result I had another engineer draw up a pln for a foundation that could be supported by and would withstand a marine clay environment. It cost me $2500 for the design and $4500 extra to build it.

    With that in hand, the county finally gave the go ahead. When the excavators came in, I very nearly had to blast in order to remove enough rock to construct my special foundation.

    When the concrete pump came to pour the foundation the operator looked down into my forms and broke out in absolute peals of laughter. I can clearly remember him holding is substantial stomach and wiping tears from his eyes.

    “Where am I supposed to puor the concrete?” he said.

    “What’s wrong?”, I asked.

    “I’ve never seen that much steel in my life.” he said.

    I found out later, that I had more steel in my foudation than we had in the explosion proof rocket test bays where I worked.

    The worst thing was, that while this was going on, the interest rates went from 6.5% to 10.25%, so the real cost of this utter nonsense was a lot more than $7000.

    Had the county told me up front that they didn’t care what the soils engineer said, they would have saved me $2500 plus interest for thirty years. I could have gone straight to plan B, which was also a total waste of money, steel, and time, as it turned out.

    When a professional engineer signs a plan, he puts his license, his reputation, and his insurance on the line. When the county tells you to buzz off, it is nothing to them but job security.

    One remedy is to let the experts do their job: and hold them accountable.

    In my job, part of what I do is write policy and prcedures. The goalof theis is to make sure nothing ever goes wrong. When I moved from the defense world to the software world, I was appalled.

    Look, I’d say to my programmers, if you put a Stinger missile on some guys shoulder and pull the trigger, you don;t get any release 1.1. In the software world, this was foreign thinking. They thought that bugs were inevitable.

    So, policy and procedures depend on decision trees and fault trees. The fault tree for the space shuttle has millions of nodes. It is not so much a wonder that it fails, occasionally, as it is that it ever flies.

    A decision tree is the reverse. It tells you what you must do to succeed, given every known failure mode.

    Anonymous has written that the (Fauquier) code is Byzantine. Fauquier is not alone. My unproven opinion is that this is done on purpose. They don’t want you to succeed.

    Recently, I went to a public meeting where my supervisor spoke. One of his comments was that Fauquier is different because, well, we are different.

    That is not very satisfying to me. My experince leads me to believe that there is a path to success. As far as public policy is concerned, it ought to be clear, transparent,and fair.

    You should present the landowner developer with a decision tree that says if this, then that. Etc.]

    If you follow the tree, then one of two things will happen. Either youwill succeed, or youwill know that you cannot. And you will know up front.

    Inevitably, as time goes by, you will lean new things, and add them to the tree. This will result in new requirements. In extreme cases it might result in a new dead end.

    These are the situations you describe, but they are the exception rather than the rule. Even then, in most cases you can find a way to grant a variance or a waiver that does no damage, if you look for one.

    As it tuened out, for my dinky little house I didn’t need the floating, bombproof foundation foundation that would have not only supported the Titanic but withstood the iceberg.

    But I would rather have that, than nothing. So, one remedy is to create a mind set that looks for a way forward rather than a way to say NO.

    I don’t know all the ansers either, and we will never know all the answer until we finish drawing the decision tree. We will never finish drawing the decision tree until we have made all the mistakes, and we will always discover new mistakes, and new branches on the decision tree.

    But that is not the process we have now. The process we have now is dogma, followed by NO.

    Just consider sewage treatment. There must be a hundred thousand ways to do this. Each of them makes sense in some environment, but most of them are labeled, “experimental” and therefore prohibited. Yet, as time goes by, the best experimetal ones become the new standard.

    That doesn’t mean that all the others are substandard or inadequate.

    Frequently, the “rules” are generated by special interests. In Pennsylvania, there was a proposed rule that would have required all construction to be built out of graded lumber. This was proposed and supported by those buisnesses that grade lumber.

    But, there were thousands of small portable sawmills in PA. These were typically owned by landowners who were harvesting their own timber, and using it in their own homes, barns, and other structures.

    No one in their right mind would build their own home out of green, rotten, insect infested, or substandard lumber. There is a possiblity that someone unscrupulous would, and then sell.

    So, what is the right answer? I saw quite a bit of lumber here, with an 8 HP sawmill. I’m lucky if I can keep up with what falls down, let alone destroy the forest. When I need money, I rent it out,or go clean up storm damage. It is a part time deal at best. And it is mostly a matter of recycling.

    But that thing is against the law, here.

    So, I am allowed to do things that cut sorely against my grain (McMansioons on fifty acre lots). But I’m prohibited from recycling dead logs that might help suport the farm.

    I’m sorry , but this is total madness.

    You want a remedy? Try common sense and honesty. You really want a remedy? Try negotiation arbitrated by a disinterested third party. You want a remedy supported by the public with their pocket involved? Try my reverse auction idea.

    But, as long as the answer boils down to a strageic stalemate, like the recent GA meeting, APFO, etc, then don’t talk to me about trying to make real progress.

  27. Ray Hyde Avatar

    You know, I realize that common sense and honesty isn’t much of a basis for public policy.

    But here is another example, for the little it is worth.

    When I first ran up against the marine caly problem, before the soils engineer, I said to the county clerk, “Look, suppose you give me a provisional permit and i give you a bond. I’ll hire an exacavator to dig the foundation and footings, and I’ll post a bond. Then you and I will go out and inspect. If there is marine clay, I don’t want my house there and I will back fill the hole, with my bond as surety.”

    The poor schmuck on the other side of the counter could see the logic too my argument, but he had not the power, the authority, or the incentive, to say OK.

    Had he the authority and the will, it would have saved me $100,000, over time. That is more than the toatal end cost of the house.. That little bureaucratic intransigence, up front, wound up over time costing me as much as the entire house cost. Today, 25 years later, the end result is that my tenants are paying twice as much as they would otherwise.

    I don’t always agree with Jim Bacon. I sometimes feed him information that opposes my instincts, solely for the sake of the conflict/discussion that will result. But when he says taht the best thing we can do is get out of the way, it is the one thing that I can fully agree with.

  28. Larry Gross Avatar
    Larry Gross

    Geez Ray… I enjoy reading your stories of trial and tribulations and I think sometimes you have a point about how dumb and ham-fisted govmint can be … but it’s extremely difficult to debate a public policy issue – in THIS CONTEXT because you write so many words and go in so many different directions and hand-wave away issues I think are central.

    This is no path from this toward even a general understanding of what is agreed and what is not.

    The purpose of dialogue is in my mind to start to understand the central issues where agreement or disagreement exist and to delve into the why behind them.

    This is simply not possible when a single post .. turns into a generalized rant against the unfairness of … “something”… that may or may not have much to do with where the issue started.


  29. Larry Gross Avatar
    Larry Gross

    re: “I do appreciate the further explanation but if you were King .. what would happen?

    That’s why I asked the highest and best use question.

    If you’re not advocating that .. for every landowner… then what?”

    Very simple: You have the right to do on your property anything that does not harm the public interest and does not require the public to suffer a lower level or service or pay money to mitigate your uses.

    Your “rights” end at your property line which is exactly where other’s “rights” begin.

    That’s it.

  30. Larry Gross Avatar
    Larry Gross

    “For the record – I do not believe that anything that benefits the environment justifies any land restriction.”

    thanks for the honest disclosure.

    For the record – I do not believe that you have the right to harm the environment and that other property owners are fully justified in restricting you from doing so.

  31. Ray Hyde Avatar

    Oh, that didn’t come out right. That isn’t what I meant to say at all. What I meant was that I don’t believe that anything and everything justifies land restrictions.

    You apparently do: no harm to the environment is justified, and any restrictionas are fully justified.

    Practically anything we do damages the environment, at least a little. I think we have got to the point where more and more people will nitpick a tiny damage in order to justify a major, hamfisted government regulation, that is then applied in a thoughtless manner, resulting in more harm than good, or in harm that is unnecesarily, or even deliberately focused.

    I’m not suggesting that we either do away with environmental regs, or that we can’t add more. But frequently we have a situation where environmental or infrastructure concerns are voiced as a cover for the real agenda, which is a benefit to ourselves, over and above the environmental benefit.

    If that happens, it is no different from a developer getting a benefit at others expense. Developers are subsidiszing ther business at others expense, and environmentalists are subsidizing their business at others expense. I think we can find fair and equitble ways to prevent both of those things from happening, but only if we are willing to look.

    You understand that developers cause costs to others, but you can’t seem to get a grip on the idea that anti-developers also cause costs to others, or you don’t care. And you seem to have different standards for when compensation is required, which is always, and never.

    I’m glad you and others have enjoyed the stories. They are all over the place for a reason: to illustrate that hamfisted dogma, and absolutist positions don’t work in the real world. Anyway, I’ve had a number of projects percolating in the background which are coming to the front. Soon the stories will have to stop.

    If your rights end at your property line, then you have no right to require additional services to be provided by others on their side of the line. You are requiring them to pay money to mitigate your uses and requiring them to accept a lower level of service. This seems perfectly clear to me. The arguments I have been making apply only when additional services are required.

    You and I will never agree on this, and it is too bad. I’m advocating a better, fairer, and more cost effective way of maintaining and increasing environmental protection by negotiating in good faith to overcome the opposition, and bring them to our side.

    You think you are fully justified in stomping others into the ground by preventing anything that vaguely resembles an externality. I don’t think that’s the way to win friends and influence people.

    You can have your position, I’ll stick with the Supreme Court, the Constitution, and the Ten Commandments.

  32. Larry Gross Avatar
    Larry Gross

    re: “You apparently do: no harm to the environment is justified, and any restrictionas are fully justified.”

    of course not. But if water quality shows damage from runoff – and if you multiply that cumulatively across the geography and the end result is a seriously degraded river and Bay –

    then those who have property with runoff – who perhaps at one time – could develop their properties without runoff restrictions – must now cease activities once thought not harmful.

    And the public has a responsibility also and they do with the creation of taxpayer-funding stormwater authorities.

    But the point is you never had the unfetterred “right” to allow stormwater to escape from your property if it was found to be harmful.

    You were only allowed to do that as long as it was found to be not harmful.

    It always was .. and remains today – a “limited” right based on present day realities not the ignorance of the past.

  33. Larry Gross Avatar
    Larry Gross

    re: “If your rights end at your property line, then you have no right to require additional services to be provided by others on their side of the line.”

    There is no quid-pro-quo linkage here.


    No property owner whether it be you with 100 acres or a guy with a house on 30,000 square feet have the “right” to do something on your respective properties that results in runoff pollution.

    You claim that folks that have bought developed properties have already used “their rights”.

    That is simply not true.

    Anyone who owns a property continues to have “rights” including in many cases – development rights – i.e. the ability to further develop that property.

    This, in fact, is how developers make big bucks on older residential tracts in fast growing areas. They simply “exercise” their rights.

    In doing so – their “rights” end at the property line just like yours.

    They cannot have storm water pollution. They must mitigate for increased impacts to schools, fire/rescue, etc.

    Any property anywhere has in your terms a “bundle of sticks” but these sticks are not unlimited and, in fact, vary according to location and rules and are not static ..but dynamic as the public interest can result in some sticks going away.

    Fairness and “linkage” to other rights is not in this equation no matter how fervently some think it should be.. that for every uncompensated action then must be a compensation… simply not true….

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