Key Oregon Case Gives Property-Rights Movement Its Day in (Supreme) Court
WHEN a government entity takes someone's private property, it must reimburse the owner at a fair rate. This is the essence of the ``just compensation'' and ``due process'' clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
But what about when a government agency restricts property use in a way that diminishes its value? Or when a government insists the owner give up part of his property in return for permission to build a house or business?
These questions are central to an Oregon case to be decided by the Supreme Court. And they are the impetus behind a ``property-rights movement'' sweeping the nation and stirring Congress.
Beyond the Oregon case, the property-rights debate and what some see as the growing power of government - especially in environmental protection - has become one of the nation's hottest political issues. Some half-dozen states have passed laws strengthening property rights, and several dozen more have considered them. So far this year, legislation has been introduced in Florida, Georgia, Iowa, Rhode Island, and Wyoming.
``It is a big issue in all the states,'' says Tracey Pribble, a policy analyst at the American Legislative Exchange Council. ``The banking and insurance industries are starting to get really interested as well.''
The Oregon case involves a family-owned plumbing and electrical-supply business in Tigard. Florence Dolan, her late husband, John, and their son, Daniel, wanted to expand their firm on their 1.67-acre lot along a creek.
In return for permission to build, city officials said the Dolans had to dedicate about 10 percent of the lot for a bike path, green way, and improvements to a storm-drainage system.
``The city demanded Mrs. Dolan's land because it wanted it for free to fulfill its long-standing plans for parks and a bike [path],'' David Smith, the Dolans' attorney, argued before the high court last week.
``The bike path is a mitigating device that takes cars off the road,'' countered Tigard attorney Timothy Ramis. ``If we can achieve that, then we free up the streets for people going to the hardware store. This is not a radical solution.''
Oregon state courts and the land-use board of appeals have affirmed the city's position, which is not surprising in a state that pioneered statewide land-use laws several decades ago.
But federal courts have sent mixed signals in working through complicated property-rights cases. In some, the right of the property owner to be compensated has been upheld. In others, the state's power to restrict land use has been confirmed.
In another Oregon case, the high court last week refused to hear a motel owner's challenge to the state law granting public access to all beaches along the Pacific Coast.
On the other hand, a three-member panel of the US Circuit Court of Appeals in Washington ruled March 11 that the US Fish and Wildlife Service went too far in ordering private landowners near Eugene not to impact property designated as northern-spotted-owl habitat.
The Dolans' case is being watched by property-rights advocates and state and local agencies. A ruling is expected in June.
Meanwhile, banking and insurance industries are taking interest because of concern that property that secures loans may suddenly be worth less if, say, an endangered species is found there, or if new regulations on developing wetlands are ordered.
FARM-STATE lawmakers have been particularly concerned about proposals to protect wetlands, which could drive some farmers out of business.
Senate minority leader Robert Dole (R) of Kansas and Rep. W.J. (Billy) Tauzin (D) of Louisiana are leading efforts to require federal agencies to gauge economic impact before issuing environmental regulations.
Others worry that Interior Secretary Bruce Babbitt's plan to create a National Biological Survey to catalog plant and animal species will threaten private-property rights.
They were also a consideration in the recent successful effort to delay elevation of the Environmental Protection Agency to Cabinet level.