GOVERNMENT "GIVINGS" AND "TAKINGS"

            Pages of the local press are peppered with references to the so-called "takings" property issues.  Unfortunately, there is more heat than light that is being generated by most of the public comment.  But that is all right, we still have a First Amendment to the Constitution.

 

            "Taking" in this context was first defined in 1791 in the Fifth Amendment:  "No person shall...be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation."

 

            Some members of our current U.S. Supreme Court have placed great emphasis on the "original intent" of the framers of the Constitution, and some letter to the editor writers have followed up by quoting certain framers out of context.  A full analysis of the Fifth Amendment is beyond the scope of this article, but I hope to add some light to the discussion.

 

            Despite the endless debate over the framers' "original intent," courts have always interpreted the meaning of legislation in the context of a changing society.  Indeed, that is why we have the third branch of government - if all laws were transparently self-executing, we wouldn't need judges to exercise their discretion.

 

            Modern American society has definitions of and principles of property, its valuation and transfer that the framers could not have intended, or even conceived.  For example, James Madison would have been amazed to learn that frequent flyer miles are community property divisible by a divorce court.

 

            Property rights are not now, and never have been, static or absolute.  In fact, there are few rights that are absolute - ie., not subject to any limitation in an organized society.  That is what social organization is all about and we, no matter how much we yearn for the days of the wild West or Walden Pond, cannot live as an island in a nuclear world.

 

            Before the Fifth Amendment was adopted, creating the "takings" clause, courts restricted private property use that endangered the social welfare.  Nuisance law is one of the oldest remedies for use of property in a manner which damages the neighbors.  Nevada County had an early role in the creation of environmental law when Lorenzo Sawyer, a federal judge, decided that hydraulic mining, however important to the growth of the local and state economy, was unfairly limiting the private property rights of farmers downstream whose production was threatened.  The government has always, and in many ways, given and taken property rights.

 

            The current debate is simply a refined version of the historical one:  at what point is there a "taking" of private property for public use and what is "just compensation?"

 

            The principles the court has evolved to answer the basic questions are not that complex.  Public use means a use for which the public as a whole will benefit and therefore should bear the burden.  Condemnation and the physical taking of private property requires compensation and the court will set the fair market value of what must be paid, using the opinion of experts if necessary.

 

            The more difficult issues relate to "regulatory takings," which occur where a regulation, otherwise allowable under the law, "goes too far," in the words of Justice Oliver Wendell Holmes in a 1922 opinion.  For 72 years the courts have been trying to define what he meant.

 

            The U.S.Supreme Court has established three factors it will look at to determine if a regulatory taking has occurred: 1) the type of governmental action being complained of, 2) the economic impact the regulation alleged to `take' actually has on the property owner, and 3) the extent to which the regulation has interfered with the reasonable investment expectations of the owner.  The Court has also ruled that when government exercises its "police power" to remedy health, safety and welfare concerns, the regulation of property will be approved, regardless of the impact on private ownership.  In those cases, the courts still agree that compensation is required only when all reasonable use of the property is taken. 

 

            Some legislators are proposing a much lower percentage, say 10% or 20%.   Environmentalists and others argue that such proposals will deadlock regulation entirely and/or bankrupt the government.

 

            Obviously, no one wants to live next to a toxic waste dump.  Just as clearly, the government has some obligation to prevent such hazards to health and remedy them where they occur.  The Endangered Species Act (1973) and the Clean Water Act (1977), among many other laws, set forth guidelines based on what the legislators have believed the general welfare means.  Those laws are also now under attack.

 

            The courts are presently involved in deciding what the implied obligation of every property owner to use land in a way "not injurious to the community" really means, when people compete for the use of property that may be limited in amount or expensive.

 

            In an attempt to balance the interests of private property owners against the general welfare, the Supreme Court is refining and embellishing the principles discussed above.  There is a shift visible in some of the judge's opinions.  That shift is tentative and has, so far, resulted in decisions which require closer examination of the legitimacy of the stated purpose of the governmental regulation, which require a closer connection ("nexus") between the challenged regulation and a legitimate public purpose, and which presume that a taking has occurred when all economic value is denied a landowner.

 

            Of course, in our complex society any "taking" is usually a "giving" to some other interest.  It all depends on whose interest holds sway.  Or, whose ox is gored, so to speak.