Douglas T. Kendall is the founder and executive director of the Community Rights Counsel, which describes itself as “a nonprofit, public-interest law firm based in Washington, D.C., that was formed in 1997 to assist communities in protecting their health and welfare.”

Just briefly, what is the Community Rights Counsel?

The Community Rights Counsel is a nonprofit public-interest law firm that helps state and local governments to defend lawsuits, protect the environment, and enact sensible land-use controls.

There are, at the moment, either four or five regulatory-takings initiatives on the ballot this fall in the West. What’s your general sense of what’s going on here? What are supporters of these initiatives trying to accomplish, in your view?

Well, regulatory-takings measures, in general, force taxpayers to pay developers, corporations, and other property owners simply to obey the law. And land-use and zoning laws change over time. We used to build factories in residential areas, because that’s where the workers lived. Then we learned [that] factories can be bad neighbors, so we changed our zoning laws to separate factories and residences. Now, as heavy industry recedes as a dominant force in the U.S. economy, local officials are trying to move workers back toward where they work. As society evolves, our land-use or zoning laws evolve with them, and what these measures do is basically freeze the laws in place and prevent that evolution and that change from occurring. And they would force taxpayers to compensate developers and other landowners whenever zoning laws need to change. I think it’s an awful idea.

Do you think supporters of these initiatives are playing off of last year’s Kelo [v. City of New London] decision in the Supreme Court? Are they trying to use that to their advantage, in your view?

Oh, I certainly think that these combination Kelo/regulatory-takings bills are a naked effort to use the unpopularity of eminent domain and the perceived need for reform in that area to advance a much broader, much more disturbing regulatory-takings agenda. It’s really an effort to have the Kelo tail wag the regulatory-takings dog.

Now, you’re familiar with Howard Rich, or you know who he is, correct?

I know he is a New York [real-estate investor] who’s been funding these initiatives in a number of states, notably not New York.

Do you have idea why he’s doing that? Is there anything more you can tell us about him?

Howard Rich has discovered the worst-kept secret of the American democracy, which is that he who has a lot of cash can have a lot of influence. I don’t like the outside influence; [I’d like to get] outside influence money out of our politics. But simply using money to influence policy is hardly novel in this country. What is disturbing about what Mr. Rich is doing in these initiatives is the whole subterfuge, the effort to take the emotional response to one issue — the eminent-domain issue — and use it to advance a much different and broader regulatory-takings agenda.

What are just a few of the negative impacts that we could expect if any of these initiatives — and I’m talking about the takings portion of initiatives, let’s say in California or Washington state — do pass? What are just some of the negative impacts that we might expect?

I think there’s likely to be two phases of negative impacts. The first is a phase of uncertainty and litigation as tremendous amounts of claims are filed as those cases work their way through the court system. I think it’s fair to call these initiatives a “Trial Lawyer Full Employment Act” because so much time and effort and energy and taxpayer dollars are going to be spent determining, first of all, what these initiatives mean, because there are some pretty ambiguous and undefined terms of the initiative. And I think the second wave of impacts depends a little on how those cases turn out, but it could mean, as I alluded to before, that taxpayers have to pay developers, corporations, porn shop owners, and other landowners for any new law that restricts property value in just about any way.

And so, let me just give you an example, which is something that happens in communities across the country all the time. You have an adult bookstore that grows with the community, the community grows around it, you have some adult bookstore in the midst of the churches rather than cities, and you pass a new law that limits those shops and the material they can sell, the activities they can engage in. Those laws have been routinely upheld by the [U.S.] Supreme Court. Well, if these initiatives pass, they’re going to be subject to a new and different kind and much scarier type of lawsuit that could easily prevail. The supporters of these laws aren’t telling the voters that, but that’s the reality.

What about in the environmental realm — what sorts of impacts might we be worried about?

Well, again, environmental science brings out new discoveries every year. We used to think wetlands were swamps, and we used to encourage developers to fill them. And now we know that wetlands provide billions and billions of dollars’ worth of environmental services to this country in flood control and pollution filtration. And now we, with our zoning and environmental laws, restrict development, and that’s a great thing. These initiatives basically freeze environmental policy in place and prevent them from responding — both catching up to the science we have now and responding to new scientific developments and new things we learn about how our environment works.

Do you believe the “Yes” forces in these states are running deceptive campaigns? And, as a follow-up to that, do you think voters understand what they’ll be asked to vote on this fall in those states?

Well, I certainly think that the campaigns are emphasizing the eminent-domain portions over the regulatory-takings portions. The entire effort of tying these two issues together is designed to capitalize on the publicity that’s been generated about eminent domain and the unpopularity of eminent domain among the citizens. So I think that voters in these states will be both surprised and dismayed, if these measures pass, when they find out that the most important and most dramatic impacts of these measures are going to be in the regulatory-takings field, in invalidating or requiring taxpayers to pay for simple zoning and land-use planning laws that have nothing to do with eminent domain whatsoever. So I think these measures and the campaigns behind them are inherently deceptive in that they are promoting one very emotional issue and hiding, within the initiatives, a much more significant issue.

The anti-takings/property-rights movement itself, though, is not a new thing, is it?

Oh, it’s certainly not. It’s been around at least for the last 20 years, it has been largely unsuccessful, however, both in the courts and in the legislatures. Virtually every regulatory-takings initiative that has been on the ballot has failed. The promoters of the agenda have worked tirelessly to win court rulings to try to extend beyond the intention of the drafters of the Constitution [as to] what the takings clause of the Constitution means. And those efforts have largely failed, and I think a big reason why is that the intent of the sponsors of these Kelo-plus bills is to rejuvenate the regulatory-takings and the property-rights movement, essentially on a subterfuge.

Just briefly, give me your definition of the takings clause of the Fifth Amendment. What do you think it says?

What it says is: “Nor shall private property be taken for public use without just compensation.” And what it means is that when the government takes your property, as it does when it’s exercising eminent domain, it has to pay you full and fair compensation. I think that’s what the clause means. I think it’s perfectly appropriate for courts to say, as they have for the last hundred years, that when a government restricts use of land so much that it’s the functional equivalent of an expropriation, you should be paid in that context as well. These measures, though, say that anytime your property values decrease at all or by a significant amount — that constitutes a taking. That’s not what the clause means. That’s not what the clause should mean.

We’re all in this game together. I’m a huge supporter of property rights, but we’re all neighbors. We all live in communities. And part of the bargain is our communities have the right to pass laws that protect us as neighbors and preserve property values; that’s what our land-use planning and zoning laws do. And measures that stop that process from going forward don’t protect property values, don’t protect property rights, and they’re not consistent with what the Fifth Amendment of the Constitution was designed to do.