Attorney General says renters remain restricted
12-15-2007 Georgia:
When the Georgia Supreme Court changed one word this week in a recent ruling on residency restrictions for registered sex offenders, it meant that most won't be able to live wherever they want after all, officials say.
Meanwhile, a legal advocacy group maintains that the state attorney general's interpretation of the ruling makes a complex law even more confusing.
A Nov. 21 ruling by the high court was interpreted to mean that it had struck down the provisions that prohibit registered sex offenders from living within 1,000 feet of a school, church, playground or other places where children congregate. The court cited individual property rights as a basis for the decision, saying the government was effectively taking a person's property by dictating where he or she could or could not live.
"We find that (the law) is unconstitutional because it permits the regulatory taking of appellant's property without just and adequate compensation," the court wrote.
On Thursday, the court issued a substitute opinion with the word "because" replaced by the phrase "to the extent that."
Georgia Attorney General Thurbert Baker's office interprets the ruling to mean that sex offenders who don't own their own homes are still bound by the old residency restrictions.
"After the attorney general moved to reconsider its (Nov. 21) decision, the Georgia Supreme Court subsequently narrowed its original ruling to now only apply to property owners who are registered sex offenders," said Russ Willard, a spokesman for Baker's office.
Hall County Sheriff Steve Cronic made a similar argument when the court's opinion was issued last month, saying sex offenders who rented their homes were not having their property taken if they were forced to move when a church or school was built next door.
Cronic believes the court's new ruling will likely restore the 1,000-foot rule to the residency restrictions, except for a handful of the county's 225 registered sex offenders who own their own homes. "Home ownership is low among the sex offenders in Hall County," Cronic said.
Cronic said his office is still waiting on official word from the attorney general and Georgia Sheriffs Association before resuming its enforcement of the 1,000-foot rule.
The Atlanta-based Southern Center for Human Rights, however, says renters have rights, too.
"The courts have repeatedly held that renters have property rights that are protected," said Sara Totonchi, a spokesperson for the center. "The attorney general's interpretation of this ruling has made a difficult law 10 times more convoluted."
Totonchi noted that the attorney general's office as recently as Nov. 26 declared the restrictions unconstitutional in a letter to the state's 159 sheriffs. "To do a 180 like this really puts the sheriffs in an unrealistic and chaotic place in trying to enforce this law and do their jobs," she said.
"The sheriff will now be expected to determine whether people ... own their houses and whether they up on payments on them," Totonchi said.
Cronic, who was opposed to striking down the 1,000-foot rule, called the court's revised opinion "a step in the right direction." The sheriff said he believes the residency restrictions still need adjustment to stay within the boundaries of the Constitution, and hopes the Georgia General Assembly will address the matter in the coming session.
"I still think the legislature needs to go back and recraft a law that will withstand judicial review," Cronic said. ..more.. by Stephen Gurr sgurr@gainesvilletimes.com
December 15, 2007
Georgia: Sex offender ruling revised
December 14, 2007
Ga. court narrows sex offender ruling to property owners
12-13-2007 Georgia:
ATLANTA --Sex offenders in Georgia are only exempt from the state's strict residency requirements if they own property, according to state Attorney General Thurbert Baker.
Baker's office said a substitute ruling issued by the Georgia Supreme Court late Thursday scales back the court's November opinion, which seemed to toss out the state law preventing sex offenders living within 1,000 feet of schools, churches and other places children congregate.
"We are pleased that the Georgia Supreme Court narrowed its decision today in response to the attorney general's motion for reconsideration," Baker's spokesman Russ Willard said.
"It narrows the scope of the court's decision to only protect property owners."
But not everyone read the justices revamped decision the same way.
"I respectfully disagree with that interpretation," said Sarah Geraghty a lawyer for the Southern Center for Human Rights, which is challenging the law in federal court.
"There are a series of very clear cases out there that say that people who rent their property are protected by the Fifth Amendment just like property owners are."
It is Baker's opinion that is likely to matter, however, as he will be advising sheriffs and other law enforcement officials on how to enforce the law.
It was not immediately clear how many of Georgia's sex offenders own property.
The court's new decision - which changed just one word in the individual opinion - could sow fresh confusion on a topic that has been fraught with heated emotion and sharp political rhetoric.
Just this week, two top Republican lawmakers had unveiled plans to introduce new legislation that would have attempted to again put residency mandates in place aimed at protecting children.
The court's ruling hinged on the takings clause, saying it is unconstitutional to force a homeowner to abandon his property or be in violation of the law. The court said there is nothing to prevent a sex offender from buying a home then being forced to move if a facility catering to children later pops up nearby.
The plaintiff in the case, Anthony Mann, bought a house in Clayton County in 2003. Later, a day care center opened nearby. He filed a lawsuit after being told by authorities that he had to shutter his barbecue business and leave his home.
Mann was convicted in 2002 of "taking indecent liberties with children."
Civil rights groups have fought Georgia's sex offender law, saying it could leave those who have already served their time for sex crimes with few housing options and could backfire by driving them underground.
Supporters counter that it is crucial to protecting children from dangerous predators. ..more.. by SHANNON McCAFFREY - Associated Press Writer --
December 10, 2007
Georgia will try again to ban where sex offenders may live
12-10-2007 Georgia:
ATLANTA --Georgia will try again to limit where sex offenders may live, after the state's top court declared unconstitutional the strict residency requirements state lawmakers approved two years ago.
The Georgia Supreme Court last month overturned a portion of the tough law that banned sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate. In its unanimous ruling, the justices said there is nothing to prevent a sex offender from buying a home then being forced to move if a facility catering to children later pops up nearby.
Under the new bill being pushed by House Republicans, a sex offender who owns his or her home would no longer have to vacate it if a center where children gather later opens up in the neighborhood. The bill would carve out a similar exception for sex offenders who have established employment, allowing them to keep their job if they had it first.
"I think this addresses the court's concerns," said Rep. David Ralston, chairman of the House Judiciary Committee that will take up the bill.
Ralston said the bill would be a top priority in order to keep Georgia children safe from the state's more than 14,500 registered sex offenders.
"We're concerned that Georgia without this is going to become a dumping ground for these people that we have tried to protect our children from in the bill that we passed two years ago," the Republican from Blue Ridge said.
House Majority Leader Jerry Keen echoed that sentiment, arguing that sex offenders from states that continue to impose strict residency rules might look to relocate to Georgia in the aftermath of the court's ruling.
"We basically, in my opinion, have opened the borders and invited them to come to Georgia and live anywhere they want to," Keen said.
The residency portion of the new bill would apply only to homeowners. Renters would still have to relocate if a childcare center, church or school moves into the neighborhood after they do.
House Republicans said they took their direction from the court's own ruling, which hinged on home ownership. The court said that to force a homeowner to abandon his property or be in violation of the law amounts to an illegal taking of property.
Whether the ruling applies only to homeowners - such as the plaintiff in the case that the justices acted on - or more broadly to all sex offenders has become a matter of some dispute.
Attorney General Thurbert Baker first said the residency law was unenforceable for all sex offenders. But several days later his office asked the state Supreme Court for a clarification because the ruling's scope was unclear. The court has not yet ruled on the request.
Sarah Geraghty, an attorney with the Southern Center for Human Rights, said the new bill is flawed.
"The Georgia Supreme Court has held in a number of cases that renters have interests that are protected by the takings clause," Geraghty said. "So, I think there are constitutional problems."
She also said the bill continues to promote a one-size fits all approach that has prompted even enforcement officials to voice concerns.
Geraghty's organization has a challenge pending in federal court against the existing law. ..more.. by SHANNON McCAFFREY - Associated Press Writer
November 24, 2007
The Takings Clause
". . . nor shall private property be taken for public use, without just compensation. "
(Amendment V)
The drafter of this clause, James Madison, opined: “A Government is instituted to protect property of every sort . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” Against the proposition that the singular purpose of our government is the protection of property, there is the curiosity that the original Constitution scarcely mentions the term. Although at least two states demanded every other provision that we know today as the Bill of Rights, not one requested the Takings Clause. What explains the anomaly?
The beginning of an answer can be found in Alexander Hamilton’s observation that “the true protection of men’s rights are to be found not among old parchments, or musty records. They are written . . . in the whole volume of human nature . . . and can never be erased or obscured.” Alexander Hamilton was, of course, referring to the natural law, which is one of the doctrinal foundations of the United States set out in the Declaration of Independence.
As a matter of original understanding, the American Founders viewed the natural right to acquire or possess property as embedded in the common law, which they regarded as the natural law applied to specific facts. Thus, the Framers thought that there was little need to create a “parchment protection” against the states, which were, after all, carrying on the common-law tradition. Many early colonial and state charters had explicitly protected “the means of acquiring and possessing property” as part of the common-law rights of Englishmen brought over at the time of the first settlements. Nonetheless, Madison apparently believed that the federal government, which, of course, had no long-standing tradition of supporting property rights, should be explicitly restricted to follow the common-law form. It was not until the late nineteenth century that the clause would be judicially applied to the states through the Due Process Clause of the Fourteenth Amendment. Chicago, Burlington & Quincey Railroad Co. (1897).
Property is not, however, entirely a natural right. The Founders understood that it would need to be further defined in statute. Particular rights of sale or use might well vary from place to place. For example, Thomas Jefferson introduced legislation in Virginia that would abolish landed estates (so-called entails) that were inheritable only through limited bloodlines. Similar restrictions were present in the common law through the rule against perpetuities, which prevents an owner from leaving property with ultimate ownership uncertain for too long a period after his death.
Because the Fifth Amendment places a restriction on the ability and manner of taking property by the federal government, this begs a central question: what is the source of the federal government’s power of eminent domain in the first place? The states clearly had that power through their longstanding common-law tradition. How did the new federal government come to possess it as well? Two answers have been proposed. The first suggests that the power to take property is inherent in any sovereign. Jones v. United States (1883); Mississippi & Rum River Boom Co. v. Patterson (1878). Although Hugo Grotius, who coined the phrase “eminent domain” in 1625, disagreed, a sovereign in certain very limited—usually war-time—situations, has been allowed to take property without the obligation to compensate. In another rare circumstance, where property is physically taken, if the taking results in no net loss to the owner, compensation is not due. Brown v. Legal Foundation of Washington (2003). Putting these rarities aside, it is frequently said that the very institution of the federal government brings with it the power of eminent domain.
A second answer is that the federal power of eminent domain resides in, and is limited by, the Necessary and Proper Clause (Article I, Section 8, Clause 18), or by Congress’s implied powers as confirmed by the Necessary and Proper Clause. McCulloch v. Maryland (1819); United Statesv. Gettysburg Electric Railway Co. (1896). Under this perspective, Congress may exercise the power of eminent domain only in order to effectuate one of its delegated powers. Similarly, the executive is limited to property takings allowable only under Article II executive powers, but they are far more restricted. Youngstown Sheet & Tube Co. v. Sawyer (1952). Inasmuch as James Madison came to support and propose a Bill of Rights because he realized the range of congressional power under the Necessary and Proper Clause, and inasmuch as the Takings Clause is primarily his offering, such a reading has historical credence.
What changes to the definition of property, then, can the federal government—and since incorporation of the Fifth Amendment, a state or local government—legislate without offending the natural right to property that underlies the common law? Justice Oliver Wendell Holmes initially opined that regulation must not go “too far”: a judicial limit, but not a very formidable one. Pennsylvania Coal Co. v. Mahon (1922). Worse, the test actually looked at the wrong question. It focused on whether the regulation diminished the value of the property, rather than asking whether the regulation actually was consistent with common-law limitations on the use of property. The confusion between restrictions on use and diminution of value continues to affect the judicial interpretation of the clause.
So what limits have the modern cases placed on the regulation of property? In other words, what is “too far”? The Supreme Court easily determined that a regulation that authorizes the physical occupation of property was a taking. Loretto v. Teleprompter Manhattan CATV Corp. (1982). This categorical protection of the right to exclude emerged from the ancient protection against trespass. But Loretto’s significance was not great as a practical matter, because few regulations have the brazenness, short of formal condemnation, to authorize third parties to station themselves on other’s property. Occasionally, regulation comes close to outright physical occupation, by conditioning the grant of a governmental permit upon some forfeiture of a property interest. For example, one homeowner was told that he could expand his home, but only if he provided a beach easement to the public. Nollan v. California Coastal Commission (1987). Another was told that she could enlarge a retail plumbing store if she set aside property for a bike path. Dolan v. City of Tigard (1994).
In these cases, the Court has held that the Takings Clause prohibits the regulating agencies from using the permit process to leverage their governmental power to achieve what they wish without cost. To survive review, regulatory conditions must “substantially advance” a legitimate governmental interest and be reasonably “proportionate” to the external effects likely to be caused by the property owner’s proposal. In Nollan, the landowner was freed of the beach-easement requirement because it was unnecessary to the government’s stated purposes. In Dolan, the store owner did not have to facilitate the bike path, because, however desirable that might be, the need for it was not caused by the activity being regulated (the expansion of a plumbing store).
The Court has also applied the Takings Clause to invalidate regulations that deprive property of all of its economic use. Lucas v. South Carolina Coastal Council (1992). This, too, is a taking unless the regulation parallels the limitations in the background principles of the state’s law of property and nuisance. In Lucas, the desired property use was for residential construction, and the regulating state could not show that the common-law nuisance principles prohibited that use of the property.
The significance of the common-law/natural-right backdrop of property continues to shape constitutional doctrine. But what happens if modern regulation does not just mimic the common law but imposes far greater restrictions, based perhaps on modern environmental considerations? Recent judicial pronouncements indicate that the courts would regard at least a certain amount of environmental restriction as a reasonable extension of the common-law principle. But if one knowingly purchases land in a jurisdiction with an expansive environmental regime, the landowner is not automatically precluded from a takings claim. Rather, that knowledge is only one additional factor for the court to consider in judging whether the regulation can justifiably be considered a taking. Palazzolo v. Rhode Island (2001).
Other factual matters do play a significant role in keeping most takings cases out of court. State administrative and judicial determinations regarding the final application of regulations to individual parcels and the availability of compensation to owners are prolonged and expensive. Until these processes are completed, a “ripeness doctrine” prevents owners from seeking relief in federal court. Williamson County Regional Planning Commission v. Hamilton Bank (1985). The Court has occasionally expressed frustration with the bureaucratic games that result in protracted litigation, Monterey v. Del Monte Dunes at Monterey, Ltd. (1999), but most often property owners are turned away from the courts and told to keep working through the prescribed processes.
The most difficult Takings Clause cases are the most common ones. In these, the regulation has not physically invaded or precipitated a total loss, or even been employed to gain undue leverage. Rather, regulation reduces, often significantly but not totally, the economic prospects for property, and an owner asks to be compensated. The governing case here remains Penn Central Transportation Co. v. City of New York (1978). In Penn Central, which dealt with an ordinance that preserved a historic landmark by imposing a large loss on the property owner by forbidding construction of an office tower above it, the Court admitted that the takings issue was “a problem of considerable difficulty.” “There was,” said the Court, “no ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” The Court admitted that in the typical case it would apply an ad hoc balancing test that would consider (1) the economic impact on the property owner, (2) the extent to which the regulation interfered with investment-backed expectations, and (3) the character or extent of the government action.
In the weighing of these factors, most property owners have lost their claims for compensation. A few have prevailed by recharacterizing the portion taken as a complete deprivation of a part, rather than a partial deprivation of a whole. The Court has said that, where there is a regulation that is terminated after a court has concluded that it constituted a taking, the owner’s deprivation during the temporary period in which the regulation was effective is compensable. FirstEnglish Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987). However, whether a planned moratorium (even if it lasts for years) constitutes a taking must be determined by using the Penn Central multifactor test. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002).
Despite the frustration and cost of litigation of enforcing the Takings Clause, property owners remain indefatigable, and they are especially so when they perceive regulation to exceed a reasonable scope and invade that which may fairly be thought to be one of the natural rights of ownership. The ultimate purpose of the Takings Clause was well described by the Court more than forty years ago as “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States (1960). That is the central principle that prompted the Framers to add the Takings Clause to the Bill of Rights.
[Editors’ Note: In Kelo v. City of New London (2005) the city of New London planned to use eminent domain to acquire property for a redevelopment project that would replace existing private homes in good condition with private office space and parking lots. The property owners argued that the taking was not “for [a] public use,” and thus violated the Fifth Amendment. In a 5–4 opinion, the Court upheld the taking, holding that where a government presents a “comprehensive development plan” with “public benefits” that are not merely “incidental or pretextual,” the Court will apply a deferential, rational-basis–like standard to determine whether the asserted public benefit of the taking satisfies the public use requirement. In dissent, Justice Sandra Day O’Connor argued that taking of a private property for the benefit of another private party does not constitute public use, unless there is a direct public benefit, such as the elimination of a blighted area.]
See Also
Article I, Section 10, Clause 1 (Obligation of Contract Clause)
Amendment V (Due Process Clause)
Amendment XIV, Section 1 (Due Process Clause)
Suggestions for Further Research
James W. Ely, Jr., Property Rights in American History (1997)
Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain, 289–293 (1985)
Matthew P. Harrington, “Public Use” and the Original Understanding of the So-Called “Takings” Clause, 53 Hastings L. J. 1245 (2002)
Douglas W. Kmiec, At Last, the Supreme Court Solves the Takings Puzzle, 19 Harv. J.L. & Pub. Pol’y 147 (1995)
Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995(1997)
Douglas W. Kmiec, Land Use and Zoning Law (annually supplemented)
Douglas W. Kmiec, The Original Understanding of the Taking Clause is Neither Weak Nor Obtuse, 88 Colum. L. Rev. 1630 (1988)
Thomas G. Roberts, Taking Sides on the Taking Issue (2002)
Bernard H. Siegan, Property and Freedom (1997)
William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782 (1995)
Significant Cases
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403 (1878)
Jones v. United States, 109 U.S. 513 (1883)
United States v. Gettysburg Electric Railway Co., 160 U.S. 668 (1896)
Chicago, Burlington & Quincey Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Armstrong v. United States, 364 U.S. 40 (1960)
Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985)
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987)
Nollan v. California Coastal Commission, 483 U.S. 825 (1987)
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)
Dolan v. City of Tigard, 512 U.S. 374 (1994)
Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999)
Palazzolo v. Rhode Island, 533 U.S. 606 (2001)
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)
Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003)
Lingle v. Chevron, 125 S. Ct. 2074 (2005)
Kelo v. City of New London, 2005 WL 1469529, 2005 U.S. LEXIS 5011
Douglas W. Kmiec is Professor of Constitutional Law and Caruso Family Chair in Constitutional Law at the Pepperdine University School of Law. This WebMemo is taken from the The Heritage Guide to the Constitution, forthcoming this fall from Regnery Publishing. ..more.. by Douglas W. Kmiec
Takings of Private Property
The Issue: The Fifth Amendment provides that private property shall not be taken without just compensation. What actions of government constitute "takings"?
Introduction
The Takings Clause of the Fifth Amendment is one of the few provisions of the Bill of Rights that has been given a broader interpretation under the Burger and Rehnquist courts than under the Warren Court. It is a clause near and dear to the heart of free market conservatives.
Only certain types of takings cases present serious interpretive questions. It is clear that when the government physically seizes property (as for a highway or a park, for example) that it will have to pay just compensation. It is also clear that serious, sustained physical invasions of property (as in the case of low overflying aircraft, for example) require payment of compensation equal to the difference between the market value before and after the invasion. The difficult cases are generally those where government regulations, enacted to secure some sort of public benefit, fall disproportionately on some property owners and cause significant dimunition of property value.
The Court has had a difficult time articulating a test to determine when a regulation becomes a taking. It has said there is "no set formula" and that courts "must look to the particular circumstances of the case." The Court has identified some relevant factors to consider: the economic impact of the regulation, the degree to which the regulation interferes with investor-backed expectations, and the character of the government action. Still, as our cases suggest, there is a lot of room for argument as to how these various factors should be weighed.
Cases
Penn Central v. New York City (1978)
Dolan v. City of Tigurd (1994)
Lucas v. South Carolina Coastal Com'n. (1992)
Tahoe Preservation Council v Tahoe Regional Planning Agency (2002)
Kelo v City of New London (2005)
..more..
Takings: The Evils of Eminent Domain
The "takings clause" of the U.S. Constitution is the portion of the Fifth Amendment that says "nor shall private property be taken for public use without just compensation." It is one of the few parts of the Bill of Rights that authorizes the government to violate individual liberty, since under the takings clause, the government, exercising so-called eminent domain, can compel a person to sell his property. But although the framers unfortunately believed the government would sometimes have to compel the sale of property, they also were aware of the potential for abuse that government power always represents.
That skepticism about government power led them to put safeguards in the takings clause. First, property could only be taken for "public use." The phrase is vague. But the intention is clear: the government should not be allowed to take the property of one citizen merely to give it to another. Second, the framers required that owners be justly compensated. That requirement has problems. In the marketplace, we know what just compensation is. It is the price consented to by a seller and buyer. But under a forced sale, there is no just price because consent is lacking. The government must resort to proxies, such as the price agreed on for "comparable" properties. Comparables are often far from identical.
But like the "public use" criterion, the requirement of just compensation had two worthy intentions. First, it recognized that a property owner was not a servant of the state. If the government wanted his property, it had to pay him. Second, the compensation requirement would restrain the government. Obviously, if private property were free for the taking, the government would take much more than if it had to pay for it.
Unsurprisingly, the government has found a way around the safeguards. It has effectively taken private property for use other than public and without paying for it. How? Through regulations that restrict owners' use of their property.
For example, local zoning regulations tell people what they can and cannot do with their land. The federal government has increasingly used the Endangered Species Act (ESA) and the Clean Water Act (CWA) to stop owners from developing or farming their land. If an animal on the endangered species list lives on a property, it is against the law to destroy the animal's habitat. This has been the case with farmland in California that is home to the kangaroo rat, in Pacific Northwest forests that are home to the spotted owl, and with other private property. Under the Environmental Protection Agency's interpretation of the CWA, private "wetlands" (some owners claim their property is not really wet) are protected and may not be developed.
The government's policy has led to countless tragedies. Elderly couples who looked forward to retiring on the profit from the sale of property have suddenly found that their assets are worth little because the government prohibits development. In one case, a couple saw the value of their land drop from over $800,000 to $30,000 in one year after the government declared development illegal for environmental reasons. In another case, a man who spent $1 million for two South Carolina beachfront development properties was prohibited from building because a state commission thought undeveloped beach was better for tourism. The price of the land plummeted.
Unlike in eminent domain cases, the owners are not paid a penny in a "regulatory taking." (Congress is considering legislation that would require payment if the property value is reduced more than ten percent.) Government officials and environmentalists argue that no compensation is due because the owner retains title to the property. Thus, they say, no taking occurred.
The objection to that reasoning should be obvious. The framers could not have meant that a taking occurs only when the government acquires title. That would make the takings clause hollow. The government could avoid having to pay for any private property simply by prohibiting all uses except the one it seeks, while leaving title with the original owner. That is already happening. The city of Tigard, Oregon, required the owner of a hardware store to dedicate ten percent of his land for a bicycle path and open space in return for a permit to expand his store. (The case was appealed and the U.S. Supreme Court placed some restrictions on what a government can demand as a condition for a permit.)
The advocates of government land-use restrictions often argue that no compensation is due because the activity being suppressed harms others. They like to say that you are not due compensation because you are not allowed to use, say, your gun to murder someone. That argument assumes what it needs to prove. It is true that if you do not have the right to perform a specific act, then your forbearance should not be compensated. However, the question is whether destroying the habitat of the kangaroo rat or the golden-cheek warbler on one's own land violates anyone's rights. It is hard to see how it does. Some cases may be harder. If a landowner changes the typography of his land and, as a result, water runs onto his neighbor's land, that may be a rights violation.
But that is a matter for the courts, the common law, and the particular circumstances. A general policy that landowners may never develop a wetland or an endangered species' habitat is unjustified.
Environmentalists also argue that if the government has to pay when it restricts land use through regulation, it will not be able to afford to regulate. That, of course, is an argument for the application of the takings clause to regulatory restrictions. Until now, there has been little to brake the regulatory juggernaut. If the regulators have to worry about how the taxpayers will react, perhaps they will not be so eager to interfere with private property. If the framers intended the takings clause to restrain government activity, then there is no reason to think that its regulatory activity should not also be restrained. The framers were worried about government's general penchant to cause mischief and not just outright seizure of property.
Opponents of the notion of compensation for "regulatory takings" pose as friends of the taxpayers and of budget restraint. They say they are trying to save the public money by fighting the property rights movement that has sprouted in reaction to the Endangered Species Act and other government intrusions. Saving the taxpayers money is a noble cause. But there is more than a dash of hypocrisy here. Their method of sparing the taxpayers is to allow the government to restrict the use of private property by fiat — even if owners lose all the value of their land.
It should be understood that a landowner's right is in the physical property, not its value. The value — or market price — is the result of other people's estimation, which cannot be owned. If someone's land falls in value from $1 million to $500,000 as a result of voluntary action (changes in consumer tastes or in the surrounding area, for example), no rights have been violated. One cannot own a particular set of market conditions. Thus, when government restrictions on the use of private property cause the value to fall, the government's offense is not theft of value. That is merely the result of the government's real offense: the restriction on the owner's peaceable actions, which is enforced, ultimately, at the point of a gun.
It we apply the principle of liberty to the takings issue, we easily see that, in fact, taxpayer compensation for regulatory takings is not the right solution to this problem. It may have the beneficial effect of restraining government activity. But there is no justice in forcing taxpayers to compensate property owners for theft committed by bureaucrats. That merely substitutes one act of theft for another. The real source of the crime is the takings clause itself. It violates individual liberty, and the only corrective is to amend the Constitution and get rid of it. The government should never be able to compel a person to sell his property.
Respect for property rights, which unfortunately was always less than 100 percent, has been in a free fall since the New Deal, when the Supreme Court said that the Constitution contains two kinds of rights: fundamental (speech, press, assembly, religion) and nonfundamental (property). The New Deal court actually upheld the government's authority under the interstate commerce clause , to stop a farmer from growing wheat on his own land for his own use.
Of course, the Constitution has no such division of rights, and property is specifically protected in several places. The reassertion of the right to property is one of today's brighter developments. The property rights movement should be encouraged in every way because property rights are the key to limiting the power of government. But a true property rights movement should not stop short of calling for eradication of the takings clause. That is the root of all evil in this matter. ..more.. by Sheldon Richman
