Community Bills of Rights/Rights Based Ordinances

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COMMUNITY BILLS OF RIGHTS

Executive Summary

This policy brief is written with respect to Community Bills of Rights and their potential as a mechanism by which communities can gain control over local land and land use decisions. This work is based on research conducted by Queens College students in Spring 2019 and is aimed at presenting how Community Bills of Rights (CBRs) and related Rights Based Ordinances (RBOs) can be utilized by organizations representing residents, tenants, historically marginalized groups and others that struggle to gain representation over decisions that shape the spaces they occupy. It was prepared for members of the GES Coalition, a nonprofit community-run organization fighting gentrification/displacement and the proliferation of marijuana grow houses in the Denver, CO, neighborhoods of Globeville and Elyria-Swansea.  However, it could be of value to any community organization seeking to gain control over decisions regarding local development, including the power to regulate the nature and intensity of area industry and business.

Context and Scope of the Problem

Increasingly, communities are losing control over the spaces they occupy as corporations and speculative outside interests invest in low-value properties and transform them in the pursuit of profit. This trend has made its way through middle-class and lower-income neighborhood across the country, resulting in the displacement of many long-time residents and a loss of truly affordable homes, as well as the degradation of local environments.

Among the causes of this problem are federal, state and local policies that encourage economic development at any cost, creating an environment in which land speculators and corporate interests see these types of activities as a way to build private wealth and assets at the expense of local communities and their interests. In this context many communities have begun to seek ways to gain control over local land and land use decisions in order to protect area residents, businesses and organizations from being displaced, and to prevent the further speculative transformation of their neighborhoods.

It is important to realize that the applicability and success of the Community Bill of Rights model can vary, depending on differences in local conditions and circumstances.

Why Create A Community Bill of Rights

One of the ways communities have begun to assert the right to control over local land and land use decisions is through the adoption of a Community Bill of Rights. CBRs serve as legislative tools that communities can use to codify and protect collective and individual rights rather than relying on existing regulatory agencies. Their purpose is to ensure that the inalienable rights of community residents outweigh other interests. CBRs tend to have a set structure in terms of what they enforce, prevent, and permit, and can focus on a wide range of issues from rights of nature and the right to a healthy environment to the right to affordable and safe housing, the right to determine the future of neighborhoods, and the right to self government. While CBRs come in many forms depending on a particular community’s concerns, this model Community Bill of Rights reflects the range of issues they cover.

The rights enumerated in a Community Bill of Rights can become local law, often through the passing of a Rights Based Ordinance. RBOs use the structure of the CBR to restrict or ban specific activities considered incompatible with community interests. RBOs can be enacted through various means, including home rule charters, charter amendments, and state constitutional amendments. These are often considered by local elected officials, or placed on local, city or state ballots through the petition process, and then voted on by eligible voters.

Examples of Community Bill of Rights and Rights Based Ordinances

To date more than 120 communities in 12 states have created Community Bills of Rights and/or enacted Rights Based Ordinances, the vast majority with assistance from the Community Environmental Legal Defense Fund (CELDF), a nonprofit public interest law firm that provides templates for and helps with the drafting of CBR laws and RBOs. CELDF has also established State Community Rights Networks in Colorado, New Hampshire, New Mexico, Ohio, Oregon, Pennsylvania and Washington.

When and where CBRs and RBOs have been successfully enacted they have tended to focus on environmental issues, including the rights of nature and the rights to clean air, water and land, as well as control of local resources.

For example, since 2006 nearly a dozen New Hampshire communities have enacted Community Bills of Rights ranging from the Barnstead Right to Water and Local Self-Government Ordinance to RBO’s prohibiting unsustainable energy systems in Easton and Danbury, the Right to a Healthy Climate and Self-Government in Exeter and a multi-issue CBR in Plymouth.

Similarly, a range of communities from California and Colorado to Pittsburgh and smaller towns and townships across Pennsylvania and Ohio have enacted community rights acts to ban hydraulic fracking and the introduction of chemical pollutants resulting from the extraction of coal, oil and gas.

Still, a number of those communities have also explicitly focused on enacting CBRs and related RBOs to gain local control of land use and development and local economic resources.

Between 2006-2008, four communities – three in Pennsylvania (Newtown Township, Blain Township and Windsor Township) and one in New Jersey (Borough of North Plainfield) – enacted CELDF-supported comprehensive plan or corporate land development ordinances specifically designed to return control over land use and development decisions to the community. These efforts explicitly “eliminate land development projects which benefit the few by creating short-term profits, and replace it with land development which reflects the values and aspirations” of community residents, or “eliminate corporate land development which benefits the few, and replace it with land development pursued by family owned and controlled businesses which will benefit” local residents.

The Borough of North Plainfield’s Corporate Land Development Ordinance goes further in noting that “state preemptions of local land use decisions have been masked by a system of regulations and permits, and that zoning and the provisions of the New Jersey Municipal Land Use Law (NJSA 40:55 D-1 et. seq.) create the illusion of community self determination while extending privileges to certain development corporations, thus violating the rights of people, communities and ecosystems.”

More recently, in July 2018, supervisors in Todd Township, PA, passed a Community Bill of Rights ordinance, drafted by local residents with assistance from CELDF, banning industrial farming. The measure, prompted in part by concerns over a proposed factory-scale hog farm and its potential to contaminate the water systems, prohibits farming operations when the animals are not owned locally and when most of the farm’s revenues do not stay within the Township.

In general, CBRs and RBOs bills of rights are grounded in legal protections embedded in state constitutions regarding the inherent rights of people before corporations and the right of residents to govern themselves and protect themselves and their environments from harm. For instance, although Pennsylvania state law says municipalities aren’t allowed to regulate the oil and gas industry any more strictly than the State, Pittsburgh’s Community Bill of Rights protects the city’s rights of nature in addition to eliminating corporate “personhood” rights. By doing so, Pittsburgh isn’t directly regulating extractive energy industries, but rather stating that by drilling, the rights of nature will be violated thus exempting the city from violating laws, such as the Contract Clause, imposed by the federal or state constitutions.

Still, while numerous communities and municipalities have adopted CBRs and RBOs, those efforts are increasingly being challenged by industry lawsuits and state legislatures that have passed provisions blocking local communities and governments from enforcing rights-based efforts.

In New Hampshire, a first-of-its-kind community rights state constitutional amendment, CACR19, first proposed in 2018, that would have guaranteed New Hampshire residents the right to pass local laws protecting human and natural communities, has failed to come to a vote in the State legislature.

Similarly, a number of communities have rejected RBOs related to at-risk populations such the homeless, including Denver voters’ rejection of a CELDF-drafted Right to Survive law in May 2019.

In Spokane, WA, a CBR that would have granted residents the right to block development in their neighborhoods, was defeated in general elections in 2009 and 2011 before a third attempt, in 2013, was blocked by a Washington State Supreme Court judge who ruled it should be kept off the ballot after a coalition of local business and government entities sued.

Conclusion

As the above examples illustrate, hundreds of communities, most working in conjunction with CELDF, have successfully enacted CBRs and/or RBOs. While many of these have focused on environmental issues, at least a handful were explicitly designed to establish control over local land use decisions and business/industrial activity, including the prohibition of speculative development and specific types of industry. Those specific efforts have taken the form of comprehensive planning and corporate land ordinances rooted in those communities’ Constitutional rights to self government.

It is important to note, however, that these successful efforts were enacted through the political process in relatively small towns, township, villages or suburban municipalities. If, as in most cases, there are no mechanisms for enacting CBRs or RBOs at the urban neighborhood scale, community organizations like the GES Coalition face the more challenging prospect of having to galvanize support for city or statewide ballot initiatives or actions.

In this regard targeted research aimed at gaining a deeper and more complete understanding of Pittsburgh’s successful effort to enact its Community Bill of Rights and Spokane’s ongoing struggle to pass a CBR giving local residents the right to block local development would provide invaluable additional insight.

 

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