Freeman

ARTICLE

Redlight for Greenways

Greenways quietly attack not only our property rights, but also our privacy and our political freedom.

OCTOBER 01, 1992 by JO ANN FROBOUCK

Jo Ann Frobouck, former editor of Land Rights Letter, lives in Sharpsburg, Maryland.

In the wake of a new environmental awareness, Americans are having a love affair with greenways—those long, skinny parks along roads, rivers, and trails, through urban and rural areas, which connect other park areas to form a continuous system with protected status and oftentimes, public access.

Greenways are generally perceived as a benign attempt to make the world a better, greener place. To greenway users, they provide an escape from hustle-bustle lifestyles. However, since greenways sometimes traverse private lands, to property owners concerned about their privacy and property rights, they are a threat. Hence, greenways can be controversial, particularly in rural areas.

Public land is appropriated for greenways fairly easily; private property is another matter. When greenway planners and reluctant landowners collide, the government invariably wins. Since unwilling participants cause “breaks” in the greenway line, the enabling legislation for National Scenic Trails authorizes the federal government to use the power of eminent domain to complete the trail corridor. The right of eminent domain—taking private property for public use—is a power of government. Although it is debatable whether greenways constitute a legitimate “public” use, given that a small segment of the population will probably use them, eminent domain proceedings must provide “due process of law” and “just compensation” when property rights are taken away.

When property is appropriated for “public use” (whether for public access or buffer zones to preserve views), landowners are forced to sell their land to the government at “fair market value,” not for a highway or a utility, but for a hiking trail. In cases where a property owner is allowed to stay, the government can force public access via a public right-of-way easement or impose regulatory sanctions to eliminate uses seen as “incompatible” with scenic resources.

The Chesapeake and Ohio Canal National Historic Park, a man-made greenway that runs along the Potomac River from Washington, D.C., to Cumberland in western Maryland, has a long history of condemnation of private property. National Park Service acquisition records show that during the 1960s, ‘70s, and ‘80s, the federal government invoked condemnation proceedings to acquire over 100 parcels of private land, scenic easements, or public rights-of-way along the canal’s corridor.

 

America’s First National Scenic Trail

In 1968, Congress recognized the Appalachian Trail, a natural greenway that runs 2,140 miles from Maine to Georgia, as America’s first National Scenic Trail and authorized federal and state land acquisition to provide a permanent trail corridor.

Two years later, Clara Brown of Frederick, Maryland, received alarming news. Her neighbors along the Appalachian Trail were informed by registered letter that their property was targeted for public takeover. It became apparent that the government, whose function is to protect the property rights of landowners, was instead intruding on those rights, forcing residents to assume the burden of protecting their property.

Mrs. Brown has been fighting for over 20 years against what she sees as the strong-arm tactics of federal and state agencies trampling ownership rights so that urban hikers could have a “wilderness experience.” Recognizing that a single owner has no chance of winning the battle against the government and preservationists, she organized landowners in Frederick County and nearby Washington County (also affected by the trail) to write protest letters to their Congressmen and attend public hearings to express their views. Despite their efforts, however, many residents lost their land to the trail.

David N. Startzell, executive director of the Appalachian Trail Conference, a private trail support group in Harpers Ferry, West Virginia, says that the “protection program” to implement “the realization of a great vision” involves more than 3,400 tracts of land, and condemnation has been used in “only five percent of the cases,” and then usually “to establish the price to be paid.” His figures, however, do not reflect the years of imposition and hardship on families who do not want to leave their homes, or on owners who are forced to accept public access easements allowing strangers to enter upon their “private” property.

In 1978 Congress saw fit to expand the Appalachian Trail’s “remarkable and fragile environments” by authorizing a 1,000-foot buffer of public jurisdiction along the trail to protect features adjacent to the trail and the viewshed (areas visible from the trail). Along the swath, the National Park Service and state natural resource departments are acquiring more private land in an attempt to eliminate “incompatible” evidences of civilization, such as homes and powerlines that “detract from the visitor experience.”

Mrs. Brown has watched what began as a footpath grow into a project that has removed homeowners who are, she says, as native to the area as the flora and fauna around them. Now, two decades later, Mrs. Brown concludes, “We have managed to exercise some control [over government plans] by group action and constant vigilance.” She feels that if the landowners hadn’t fought back, many more would be gone.

Last year, Maryland’s Department of Natural Resources released a plan to relocate a mile stretch of the Appalachian Trail some 1,000 feet farther east to an area of fewer homes and other visual “intrusions.” (Other portions of the trail in other states are being re-routed as well.) That plan has raised the ire of local residents along the proposed route who say a relocated trail would affect their sense of isolation. They do not want the hikers to disturb their peace and tranquility, the reason why they chose to live there. The exact corridor of the re-routed trail has not yet been determined, but when it is, more landowners could lose their homes and land through eminent domain.

Lauri and Danny Yonker own three acres in Smithsburg, Maryland, a portion of which lies in the new trail’s projected corridor. Mr. Yonker runs his business at home where he welds and fabricates tools and dairy systems. According to the preliminary design for the re-routed trail, the Yonkers would lose half of their land. They worry that county officials might shut the business down because the reduced acreage would violate existing zoning standards.

The dilemma that the Yonkers are experiencing is typical of the abuses of greenway projects. Government officials hassle landowners by requiring bureaucratic permission for such activities as landscaping or erecting a new outbuilding, sometimes even to the extent of approving what color one may paint his house. Such tedious demands can result in a landowner begging to be bought out, at which point the government merely has to name its price.

Lauri Yonker says their conservation zoning won’t allow them to develop their land any more than it already is and feels that the state just wants to make it difficult for them to stay. She is also concerned that officials have begun to refer to their area, which is surrounded by four different state parks, as the “South Mountain State Park,” when there is no such park. She fears there are plans afoot to combine the state parks (that have been temporarily closed due to budget shortages) into one vast area so the state can get control over the small pockets of land still in private ownership.

 

Trail Access Debates

Debates over public access to trails can get bitter. In The Washington Post, Eric Seaborg, a member of the Discovery Trail mapping team, related an unpleasant encounter with a local farmer in southern Illinois while trekking cross-country with his two teammates to lay out the trail corridor.

Following a lonely dirt road, shown on a U.S. Forest Service map to have a public right-of-way, Seaborg and another team member came to a point where the road was closed. They suddenly found themselves, with night coming on, separated from the third team member and confronted by a pack of unfriendly, barking dogs. The farmer, brought out of the house by all the commotion, found the two strangers in his barn. He was concerned that the U.S. Forest Service had told them they could use his road, which he claimed had no right-of-way easement. After making it clear he wanted no part of the trail project, he asked them to leave.

As the farmer headed back to put up the dogs, he warned the intruders: “This is rattlesnake country—there’ve been two killed already this year” on the same road the two had to take back to the trailhead. The farmer drove away without offering them a ride out.

The U.S. Forest Service claims it owns a public right-of-way through the farmer’s land. The farmer, who disputes the right-of-way, has closed off the road. Meanwhile, the U.S. Forest Service continues to show the road (with public access) on its map, but claims it does not have the financial means to back up its contention with legal action. If Congress authorizes an American Discovery Trail (a proposed 5,500-mile hiking trail running east-west from Delaware to California), the farmer will be forced to defend his property against the government’s claim—or give in.

 

Greenways Tend to “Grow”

The perennial problem with government supported greenways is that they tend to “grow.” Like the Appalachian Trail, what starts as a simple footpath soon invades private property, “needs” federal protection, and then a buffer to protect the features adjacent to the trail. These features can include watersheds, woodlands, wildlife habitats, historic sites, and a host of other natural and cultural resources.

The trail’s conceptual beginning was an omen to rural property owners of the real agenda of trail planners. In 1921, before the trail was established, conservationist Benton McKaye wrote an essay for the American Institute of Architects entitled An Appalachian Trail, an Experiment in Regional Planning. McKaye’s writings showed a comprehensive plan where the trail would serve as a starting point for wider land use planning efforts aimed at controlling rural growth and development.

Viewed in this light, it is apparent that the trail is not the simple footpath greenway planners would have us believe. Clearly, its protective covenants, ostensibly to provide a “wilderness experience” for recreationists, also serve to control “unwanted” growth in the outlying countryside to the detriment of the rights of private property owners along the route.

The unsettling part for rural landowners is the planned national network of greenways. In a July 1991 letter to her colleagues to enlist support for the Discovery Trail, Representative Beverly Byron reiterated the commitment that emerged from President Reagan’s Commission on American Outdoors: “The American Discovery Trail will become the backbone of a growing national trails system, a system with the long-term goal of putting every American within 15 minutes of a trail.” Considering that 80 percent of the population lives in urban areas with no resource connection, trail advocates should have little problem finding political support for greenways.

Look out, rural America: greenways are more than a recreational footpath. They are a way to disenfranchise landowners and to control human activity politically to preserve aesthetic landscapes. Greenways quietly attack not only our property rights, but also our privacy and our political freedom—the values Americans hold most dear.

ASSOCIATED ISSUE

October 1992

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