mhobbs at MR.Net
mhobbs at MR.Net
Sun Jul 3 12:09:56 EST 1994
Under the heading "Property Rights-High Court upholds myth more than law"
the following editorial appeared in my local paper recently. I desagree
with the article strongly and intend to rebut it. If anyone has any
comments to make please do so. I felt the subject did fit within bionet.
agroforestry because of the impact of uncompensated restrictions on
privately owned forest land. Typos are mine.
An American myth holds that property rights are virtually absolute-that
owners of land can do whatever they want with it without suffering
government interference. After all, dosen't it say right there in the 5th
Amendment to the U.S. Constitution that private property cannot "be taken
for public use without just compenstation"?
So it does. But that hasen't prevented cities and states from enacting-or
the courts from upholding- zoning codes and other regulations to protect
the broader public interest-even though the rules may diminish the
development potential and, therefore the value of properties. There's even
been a presumption of constitutionality in cases where regulations might
require landowners to give up some of their land in order to change or
expand its use.
No more, however. In a stunning decision, the U.S. Supreme court has
imposed what dissenting Justice John Paul Stevens called a "novel burden of
proof" on government not only to show that such takings serve a legitamate
public purpose but also to demonstrate "rough proportionality" between the
harm caused by the proposed new land use and benefits that would result
from the taking of the land.
That might seem only reasonable-expecially in the case in question, in
which the court majority sided with a Tigard, Ore., store owner. The owner
objected to a requirement that she give up approximately 10 percent of her
land for a floodplain easement and bicycle pathway as a condiditon for
receiving a permit to build a larger store and parking lot. But coupled
with other adverse land-use rulings by the conservative-dominated court,
this one continues a worrisome trend that could seriously harm efforts to
assure orderly growth, environmental conservation and protection of public
health and saftey.
Some might argue that the court is only taking a "strict constructionist"
view of the Constitution. But as a 1973 reprot by the Council on
Environmental Quality observed, "only around the turn of the century did
judges and legal scholars popularize the notion that if regulation of the
use of land became excessive it could amount to the equivalent of a
Calling this idea a "judicial fiction....wholly inconsistent with
the tradition of the Founding Fathers," the report urged a return to the
stricter 19th-century interpretation of the taking clause as nothing more
than a ban against arbitrary land seizures while allowing governments
considerable leeway in regulating land use. As Justice Stevens observed in
his dissent in the Tigard case, where new urban developments bring with
them the risk of environmental harm, the public interest in averting that
harm must outweigh the private interest of the commercial entrepreneur.
It's frightening that the courts majority seems determined to go the other
I would like to know who or what is " The Council on Environmental
Quality"? I also wonder if anyone has the rest of the details of the Tigard
case? We're a bit far from Oregon for me to catch all the news, but I seem
to recall that there was more to it than just an easement for a bikeway.
Didn't they also have to contribute money to something several miles from
and unrelated to their property??
My interest in this stems from my being a part-owner of a lumber company.
My interest in this issue stems from my being a part-owner of a lumber
Michael Hobbs, Golden Valley MN
mhobbs at MR.Net
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