Property Rights

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
Compuserve  73307,2123

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