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When to Pay for Land 'Takings'

A supreme Court ruling this week left no doubt that on the issue of property rights, the nine justices engage in intellectual combat inside their private chambers. Just reading their written decisions on this case is like watching a wrestling match taking place under a rug.

Property rights are a cornerstone of freedom and democracy, and yet social pressures to regulate land or take it for public use often serve the common good. Courts are left to find a balance between a clash of society's needs and the Constitution's protection of private property. And over the past 15 years, a more conservative high court has leaned toward the rights of property owners.

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This latest decision was narrowly focused on a temporary moratorium imposed on development of coastal land around Lake Tahoe. The justices were asked to rule whether landowners were due just compensation for the temporary "taking" of the economic use of the properties.

A 6-to-3 ruling against the owners said compensation is not needed for temporary regulations. But the decision also set a new threshold for when governments need not pay for "regulatory takings."

The majority argued that while most land-use rules do affect property values, treating them all as needing just compensation would "transform government regulation into a luxury few governments could afford."

Such logic sets up courts to decide how much of a burden taxpayers can endure to pay their fellow citizens whose land is regulated. If landowners can be pinched by regulations, how much should taxpayers be pinched?

Perhaps that's why the court suggests legislatures set limits on when compensation is due. That's a dodgy idea, and the court will likely need to wrestle with this issue again.


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