As most of us have experienced firsthand, property rights are not absolute or unqualified. Cities restrict the use of property all the time.

Developers tend not to like land use and environmental limitations.

To overcome regulation, a common tactic is to threaten “takings” litigation invoking a passage in the Fifth Amendment – “nor shall private property be taken for public use, without just compensation”. This tactic is borne of a growing and aggressive “property rights movement” that seeks to curtail government regulation and interference in land use decisions. The “movement” has been emboldened by a few notable and favorable court rulings.

The pressure on our communities to loosen sensible land use regulation has been relentless and well organized. The very threat of litigation strikes fear in the hearts of our decision makers or provides them with the cover they need to promote their pro-growth agendas.

The perceived risk of takings liability (more myth than reality) leads to developers having full sway over land use decisions and leaves community interests and protection occupying the “backseat”. Ever wonder why cities (in my case, Rancho) prominently display their attorneys when citizens complain about a project? He or she is not there to advocate on our behalf. Rather, they are there to defend the City’s position, which is often in direct contravention with the community’s desires.

Undoubtedly, the Supreme Court has ruled in favor of property owners in some high profile cases. These rulings, however, have been narrow and carefully limited. Courts have repeatedly come down in favor of local land use decisions and have reaffirmed the central role that planning and regulation plays in protecting our communities and in advancing the common good.

What exactly is a taking? The courts have defined a taking as a physical occupation or “direct appropriation” of property. This type of taking, although understandably problematic for many, is accompanied by “just compensation” – generally the fair market value of the property.

Where the real debate lies is with regulatory takings. A regulatory taking is an action by government that for all practical purposes reduces the value of a property to zero (or thereabouts). “From a landowner’s point of view” it is “the equivalent of a physical appropriation”.

Without question, this type of taking is patently unfair, unjust, and unlawful regardless of the intent of the regulation or governmental action. It takes “extreme circumstances”, however, for a land use regulation to rise to this test.

There has been a long litany of takings cases dating back to 1978. Armies of lawyers have argued ever since about what all this case law and dicta means. Nonetheless, some things are clear. Land use regulation must be reasonable, must not be arbitrary, and must serve some legitimate government or public purpose.

There is no entitlement to “highest and best use” of a property (maximum profits). Property owners have legitimate “investment-backed expectations” based upon circumstances, zoning, and law at the time of original purchase. Finally, government may not deprive an owner of all economic or beneficial use of their land.

Obviously, there is lot more. Thousands upon thousands of pages have been written about those twelve words in our Fifth Amendment.

Yes, government is the guardian of our property rights. Zoning and land use controls tend to enhance property values and make our communities more livable. Local officials should not and must not promote the property rights and interests of a select few at the expense of the rest of us.

In the words of the Court, “each of us is burdened somewhat by (land use) restrictions, we, in turn, benefit greatly from the restrictions that are placed on others.”

The debate over individual property rights and the common good will rage on. Like monks who spent their lifetimes during the Middle Ages “glossing” or amplifying each chapter and verse of the Scripture, we will do the same with those twelve words in our Bill of Rights. And like the monks who sought meaning in those verses, we too will lose sight of the original message.

It’s time to be honest with ourselves. We cannot ask local officials to prohibit a developer from doing what he does – develop land. Developers, too, need to recognize that their investment decisions need to made based upon current zoning, land use, and environmental law and that the community is under no obligation to accommodate them if they seek changes.

So when your local official utters the mantra so-and-so ‘has property rights’, your refrain should be ‘subject to lawful land use restrictions’.

Copyright © 2008 Frank Schiavone

Frank Schiavone
fschiavone@verizon.net