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Some people actually read the U.S. Constitution. Among other reactions, they come up with interesting legal philosophies.
For instance, the Fifth Amendment, best known as the
protection against self-incrimination used by suspected
subversives when testifying before a headline-seeking
congressional body, also holds that nor shall private
property be taken for public use without just
compensation.
Thus, if the local improvers want to run a road down your back 40, then you clearly deserve some just compensation when your private property is taken for this public use.
But things aren't always so clear. If you bought 400 acres with the idea of converting from pasture to a gated enclave of amenity-laden trophy homes, and the county changes the zoning so that you've got to keep running cattle on the land, has your private property been taken for public use?
On one hand, you've just been jobbed out of a potential
retirement to Bermuda because the do-gooders have inflicted
open space preservation
or some similar public use
on your private property. On the other hand, you're still
entitled to run cattle and shoot trespassers, so has
anything really been taken from you?
One recent response to this dilemma: the proposed
takings laws,
which expand the obligation of
government to pay when, say, an endangered species is
discovered on your property and your gravel pit just turned
into a wildlife refuge.
Takings laws
have received ample publicity of
late, but we should also consider givings laws.
A
takings law
recompenses a landowner when government
action has reduced the value of his property. Conversely, a
givings law
would recovers from a property owner
when a governmental action has increased the value of his
property.
For instance, ads for mountain parcels often stress that
there's abundant wildlife
and that the only crowds
you'll see are the magnificent elk grazing on summer
mornings across verdant dew-clad meadows beneath the
towering granite peaks of the Rocky Mountains.
Obviously, the elk add value to the property, or the developer wouldn't advertise the abundance these critters while ignoring other wildlife like rats, cougars and giardia germs.
Under Colorado law, wildlife are property of the state,
so we have a state action -- the maintenance of an elk herd
-- that has enhanced the value of the parcel. But do we
recover any money from this givings
?
Similarly, there was the fellow who bought a wilderness inholding in the West Elk range near Paonia, and started construction with helicopters. This would be an expensive house, made much more valuable in modern anti-social America because whoever bought it would never have neighbors on account of the wilderness designation.
The designation of surrounding land as wilderness thus
added considerable value to the property, and why shouldn't
society recover the value that society created by means of
a givings law
?
We could go on, perhaps to all those landowners in the
Big Thompson canyon who had No Fishing, No
Trespassing
private property before the 1976 flood, and
then claimed there was a public interest in helping them
rebuild.
On a national scale, there's construction up and down
the Atlantic coast on land vulnerable to hurricanes. No
sane person would build there, except that there's a
federal insurance program to cover this land that no
private insurer would touch. Another givings,
and
another chance to reduce our taxes by charging these folks
for the value we add to their land by insuring it.
Such analysis could continue indefinitely -- zoning
laws, restrictive covenants enforced by public courts, etc.
-- but it should be clear by now that if we're going to
have takings laws
then we also need givings
laws.
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