|
|
 |
 |
|
|
Posted April 26, 2002
Takings and the Collective GoodBy Jonathan Walters
For the unanointed, it is considered a “taking” when some government regulation — usually a zoning law — deprives a landowner of the use of his property without compensation by government. Takings cases in the past couple of decades have become the pivot point for a major ideological war over the extent to which government has the authority to regulate land use in the name of public health, safety and welfare, and the extent to which Americans have the right to use their own property as they see fit.
For years, courts sided with government in most of the challenges to zoning and land use laws. But starting around the mid-1980s, the U.S. Supreme Court kicked off a string of rulings that property-rights advocates perceived as big wins. Among them: That government could be held liable for damages in a takings case (that case was then remanded to a lower court and the offending zoning statute summarily upheld); that government could be found guilty of violating landowners’ due process rights in executing land use regulations (opening a new avenue of challenge to land use law); that the practice of seizing private property for some public use without compensating the landowner would be carefully scrutinized by courts (as well it should); and that even a landowner who purchased property knowing it was encumbered by regulation could sue for a taking (probably the most blatantly ideological of all the court’s taking decisions).
But if property-rights advocates thought they were cutting away the roots of governments’ right to regulate land use, they were proved seriously and dramatically wrong by court’s 6-3 decision in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, a case that has taken years to work its way up the court ladder.
The challenge in Tahoe was to a long-term moratorium on construction of homes on existing lakeside lots while the local planning agency tried to figure out some way to accommodate development and protect the seriously declining quality of the lake. Lot owners were not pleased about the open-ended nature of the moratorium and sued, claiming a regulatory taking and millions of dollars in damages.
In affirming the planning agency’s right to hold development at bay virtually indefinitely, the court stated very clearly that government has one responsibility above all in fashioning and executing land use policies: to consider the collective good.
Government should always be judicious about how it regulates private property. But the latest Supreme Court’s ruling was a powerful — and long overdue — affirmation of a governmental responsibility that is absolutely central to a functioning, civil society.
Jonathan Walters is a staff correspondent for Governing.
Readers’ Responses:
As usual, Jonathan Walters is on the money in his discussion of the Supreme Court's Tahoe decision. The Tahoe decision, however, was more than simply a reaffirmation of local government's ability to regulate land use.
What I found most refreshing about the decision was the recognition that there are issues which must be left to local legislative bodies to decide instead of unelected federal judges. The court was asked to lay down specific rules governing when and for how long building moratoriums could be enacted, but the court ruled that "formulating a general rule of this kind is a suitable task for state legislatures." The court also went on to note that if every local ordinance which restricted property use in some way was per se a "taking" reviewable by federal courts, then local government would virtually grind to a halt. The court declared that:
"Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision-making. Such an important change in the law should be the product of legislative rulemaking rather than adjudication."
This is the type of hands-off policy that has been sorely needed (and sorely lacking) in the federal courts for a few decades now. Robert Bork in a famous essay a few years ago declared, "This last term of the Supreme Court brought home to us with fresh clarity what it means to be ruled by an oligarchy. The most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control." This decision is the only time I can remember in recent history that the Supreme Court has actually refused to interfere in a case, declaring that the type of decision at issue was the proper sphere of a legislature.
I would like to think that this decision is part of a pattern of deference to local government which has been established in cases such as City of Boerne (striking down Congress's attempt to pre-empt local ordinances which affected religious groups) and Printz v. U.S. (striking down Congress's attempt to "dragoon" local officials into enforcing federal statutes). As Mary Anne Glendon, noted Harvard law professor, commented with respect to these prior decisions restricting Congress: "If a majority of the Justices are willing to recognize that the Constitution limits not only Congress’ power, but their own, we could be on the verge of a major transition in constitutional law—away from the judicially sanctioned oligarchical tendencies of the past thirty years toward a revitalization of the democratic elements in our republican form of government."
That may be a lot to hope for, but the Tahoe decision does take us a step in that direction.
Paul Clark
Recently in View:
Whatever Hyundai wants: the big Alabama giveaway (posted April 17, 2002)
Your Friendly, Cooperative Press Corps: control freaks of the Empire State (posted April 4, 2002)
What Hummon Knew: the end of a dynasty (posted March 25, 2002)
Civil Service on the Block: labor’s bargain (posted March 18, 2002)
The IT Handouts that Aren’t Coming: waiting for the feds (posted March 8, 2002)
Complete index of View columns
|
|
or years, advocates of private property rights have been crowing about their string of U.S. Supreme Court wins in so-called “takings” cases. But a decision just rendered by the high court has muzzled the celebration, and emphatically.