Investment property

Snakes Can Rattle Plans For New Home Development

This past March, it was widely reported that a New York business owner got into some big trouble for trying to keep rattlesnakes off his property. His family owns a quarry and it appears that rattlesnakes liked to visit the quarry. To keep them out, he erected a waste high fence around his property. He wasn"t stomping on, clubbing, or shooting the snakes. Nor, apparently, was he evicting the snakes from his property (which really doesn"t sound so terrible either). All he was reportedly doing was preventing the snakes from entering onto his property by erecting a small, harmless fence. But Noooooo! New York State, just as has the federal government and many other states, has an Endangered Species Act which prevents people from taking almost any action which might be deemed to be ever so offensive to animals that are listed as "endangered" or "threatened." According to published reports, New York has ordered that the fence must go because the fence could result in a "psychological stress" being placed on these snakes, by blocking access to areas that the snakes have become accustomed to visiting. In fact, New York went to Court to make sure that this snake unfriendly fence comes down, which means that the quarry workers cannot do anything to safeguard themselves from the snakes. You see, people are not endangered species in New York, and their psychological well being is apparently less protected than that of rattlesnakes. This is hardly an isolated story. Nationwide, property developers and owners have had to dramatically alter their plans in order to conform with such state and federal laws. A common scenario is that a developer purchases a large parcel, perhaps an old farm, so that he can construct several hundred new homes. He needs to build a minimum number of homes for the project to become cost effective. During construction, someone encounters, or thinks they have encountered, a small endangered frog, owl, or a special butterfly, by way of example. Once the government learns of the blessed reported discovery, much of the project is often placed on hold. You see, it is then not enough to protect that particular bird, frog or butterfly, every such animal that is or might be located on the property must likewise be protected. This means that the developer must painstakingly search for them. Expensive consultants must be called in to look for these animals. This is a real problem because often the encountered animal comes from somewhere else and was just visiting when spotted. After months or years of delay, and inconclusive studies, the plans are frequently modified so that substantially fewer units can be constructed. In some cases, entire projects have been blocked. And it is frequently not even clear that what someone thought they spotted in the first place was the protected species in question (some unprotected frogs closely resemble their protected cousins). Under the federal Endangered Species Act, a species receives federal protection once it is listed as either threatened or endangered. An endangered species is actually facing extinction. A threatened species may in the near future face extinction. The listing process follows strict administrative procedures, which are referred to as "rulemaking." The government can initiate this process, as can also a private party. A determination is based on the best "scientific and commercial data available." The process often involves court-like hearings to determine whether this standard has been satisfied. Once a species (can be plant or animal) is listed, it becomes protected. Under federal law, protection means that no one can or attempt to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect such listed species. In addition, habitats that are determined to be critical to protect these species are also entitled to protection. There have been many important success stories associated with the federal law. Eagles, falcons, certain bears, turtles and fish, have all been protected from extinction due to this law. In fact, there are many valuable aspects to all of these state and federal endangered species laws. They become a problem when they are enforced in a seemingly arbitrary manner. Such as, for example, when a property owner is prevented from keeping dangerous rattlesnakes off his property to preserve their psychological health. Such silliness places into question the state"s psychological health. Last year the U.S. Supreme Court heard oral argument in a case in which a city government blocked a 190-unit condominium development, on a former oil company tank farm, out of concern that the "Smith"s Blue Butterfly" might lose part of its habitat. While the narrow issue before the Court is whether a judge or a jury should hear the case to set damages, it perfectly illustrates the impact that a butterfly can have on a 37-acre industrial, redevelopment project. Yes, butterflies should be free to fly away. But official common sense should never fly away. In the final analysis, many of these cases require nothing more or less than a good dose of common sense.

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