1.08: Property rights moves forward
(Week of Feb. 26, 2002)
FEB. 22, 2002 - - A proposal under increasing scrutiny
behind the scenes is a sweeping property rights measure that would
give property owners more alternatives if they felt their property's
use had been "taken" by the government.
The so-called takings legislation, a proposal by
Senate President Pro Tem Glenn McConnell, would allow property owners
to sue government agencies for putting "inordinate burdens"
on their property. Under the proposal, an administrative judge would
determine whether regulations were a burden, but a jury would determine
While the proposal isn't on any formal committee
agenda, property rights proponents and land management advocates
are meeting to work out a compromise plan that would change the
process to make it more acceptable to all. The Senate Judiciary
Committee is expected to take up the measure in coming weeks.
The U.S. Constitution's Fifth Amendment ("nor
shall private property be taken for public use, without just compensation")
protects citizens from actual takings of land by the government.
But property rights advocates say they feel local government rules,
regulations, zoning and planning are increasingly restricting their
enjoyment of their property. They say they aren't able to do as
much with it as they want because zoning laws are putting an inordinate
burden on property uses. Therefore, they say, part of their property
has been taken from them and the government should pay. Right now,
about all they can do is sue the government for remuneration, but
it's a long and costly process.
Land planning advocates say it's necessary for
governments to steer and manage growth to control sprawl and poor
development. Without the ability to zone and manage growth, a shopping
center could be located next to a factory that spews noxious fumes.
They say the current proposal (S. 528) would expose local governments
to millions of dollars of potential lawsuits and would curb their
abilities to do an effective job of managing land.
Both sides are working on a compromise that would
provide for a more taxpayer-friendly, responsive process in which
taxpayers and governments would attempt to mediate disputes without
costly court actions. If mediation didn't work, the opposing sides
could move to the courts - which is what they do now anyway.
With the bill just starting to pick up steam, it
might be too late for passage into law this year. If not, look for
this to be a major bill in the next session.