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The Fifth Amendment to the United States Constitution is
most famous for its protection against self-incrimination,
in that no person... shall be compelled in any criminal
case to be a witness against himself.
That provision, along with its prohibition of double jeopardy and its requirement of due process, sometimes upsets the law-and-order types. But lately, some right-thinkers have celebrated the last clause of the Fifth.
It provides that private property cannot be taken for
public use, without just compensation.
Normally, that means that if the city wants to widen the street in front of your lot, then the city has to pay a fair market value for your land.
However, there's a growing property-rights movement
which argues that any form of government regulation which
limits the possible economic return from your property
constitutes a takings,
and you should be
compensated.
Here's the logic. Suppose you bought a 40-acre parcel in some low-down-payment easy-monthly-payment serene and rustic mountain development. You plan to put a cabin on it someday.
Meanwhile, some dangerous radicals take over the rural county's government. They observe that your cabin site is essentially a mudslide waiting for a good thunderstorm, and they don't want to be stuck with the mess. Further, that charming scenic access road has steep grades and hairpin curves, such that no fire truck or school bus can climb it.
So the county commissioners adopt a new zoning plan, and forbid all residential or commercial construction in this area.
You've still got your land, but you can't legally do
much with it, on account of a governmental action. The
restrictions mean that your property is worth less. It
certainly appears that a part of your property, its
development rights, has been taken for public use,
and that the constitution entitles you to just
compensation.
In essence, that's the argument of the emerging property-rights movement. They were excited last summer when the U.S. Supreme Court limited the ability of local governments to make real-estate developers set aside environmental easements.
At issue was the desire of a plumbing-supply store owner
to expand her store and pave the parking lot. The city of
Tigard, Ore., said she'd have to dedicate about 10 percent
of the property to a storm-drain and pedestrian pathway.
She said this requirement was a takings
and the
Supreme Court agreed.
The decision thrilled the rip-and-run crowd. If they can
get the takings
clause to cover any government
regulation of property, then they'll have to be compensated
every time a regulation affects them. Environmental
regulations will become so expensive that no government
could afford them.
Or at least, that's what my environmentalist friends
tell me -- that this whole property rights
movement
is just a right-wing plot to insure that polluters and
developers always have their way.
But it could also enrich the rest of us. The first
takings
lawsuit was brought in Kansas, a haven of
virtue which adopted statewide prohibition in 1887.
Peter Mugler, who owned a brewery, sued. His mash tuns
and wort kettles were worthless on account of prohibition,
a governmental action which had put him out of business,
and he wanted his just compensation.
He didn't get it. The Supreme Court then held that a
government can prevent a property owner from using his
property to injure others without having to compensate the
owner for the value of the forbidden use.
However, that was essentially the same Supreme Court
which created the separate but equal
doctrine that
was later overturned. So the Mugler precedent is certainly
not carved in stone, and it could certainly be struck down
by a more enlightened court after hearing arguments from
the well-funded attorneys of the property-rights
movement.
If that happens, one friend plans to send the federal and state governments a bill for $100,000 a year. He has about 10 acres with decent water rights.
I just read somewhere that a dedicated pot farmer can
clear about $10,000 an acre every year,
he said, and
so the laws that forbid marijuana cultivation are taking
this much potential income away from me and my family. If
that's not a 'takings,' I don't know what is, and I want my
just compensation.
I don't own any land besides some city lots, but they'd
probably be worth considerably more if I could replace the
current structures with casinos or bordellos. The laws
which prohibit these uses, just like various environmental
laws which prohibit certain property uses, must be a form
of takings.
Where do I file for my compensation?
Those noisy airplanes that the government allows to fly
over your property, thereby diminishing its value -- how
much compensation do you deserve? If you're in the metro
area, how much just compensation
do you deserve for
what the Brown Cloud costs you in lost property values?
With a good Supreme Court decision that upholds the arguments of the property-rights movement, we could all get rich.
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