The Government’s Taking of Private Property

The Constitution of the United States is based primarily on the ideas of the 17th Century English philosopher John Locke. Locke thought that everyone had natural rights, which included life, liberty, and property. Locke stated "the great and chief end, therefore, of men"s uniting into commonwealths, and putting themselves under government, is the preservation of property" (Locke/ McClaughry 3). He thought that if any of these rights were violated that the violator should make restitution.

The Takings Clause in the Fifth Amendment of the Constitution states "Nor shall private property be taken for public use, without just compensation. When the government needs a citizen"s private property to build roads or buildings, they compensate the person with money roughly equal to the value of that person"s land. The problem of the government taking or restricting a citizen"s land arises with regulation of private property. John McClaughry defines regulatory taking "as a governmental confiscation or destruction of economic rights by regulation, without the physical occupation which would trigger just compensation to the owner" (McClaughry 7).

The case of Lucas v. South Carolina Coastal Council is an example of regulatory taking. In the case of Lucas v. South Carolina Coastal Council, Lucas bought two adjacent lots on the coast of the Isle of Palms in South Carolina, only to have the land restricted by the state, which prevented his intended use of the lots. Lucas argued that the state"s restriction of the land constituted taking without just compensation. The South Carolina Court of Common Pleas agreed with Lucas and awarded him $1,232,387. 50.

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The Supreme Court of South Carolina disagreed with the lower court, and saying that the restrictions were designed to prevent serious public harm so no compensation was necessary, even if it did affect the property"s value. Lucas appealed to the Supreme Court of the United States. The Supreme Court of the United States decided on Lucas v. South Carolina Coastal Council in June of 1992. This was four years after the Beachfront Management Act, which prohibited construction on Lucas" lots, was enacted in 1988. An amendment was made to the Act in 1990 that would allow construction in special situations.

Lucas could possibly appeal to the Council and receive a permit to build on his lots at the time of the Supreme Court hearings. Lucas argued that the deprivation of use of his land from 1988-1990 amounted to a taking. The Supreme Court decided to grant certiorari. According to Locke, the government"s purpose is to protect and enforce people"s natural rights. One of the natural rights, according to Locke, is life. The coastal area of the Isle of Palms that Lucas" lots were on has been plagued with floods. Justice Blackmun stated that the land was "under water" from 1957 until 1963.

In addition, between 1981 and 1983, "the Isle of Palms issued twelve emergency orders for sandbagging to protect property" (Blackmun 2). The state of South Carolina saw Lucas" property as unsafe. "Long ago it was recognized that all property in this country is held under the implied obligation that the owner"s use of it shall not be injurious to the community, and the Takings Clause did not transform that principle to one that requires compensations whenever the State asserts its power to enforce it" (Keystone Bituminous Coal Ass. 491-492).

The state"s prevention of building on the site in question would not only foreseeably save the beach from erosion,! insurance and federal aid money, but possibly lives. The Supreme Court ruled in this case that when all value has been taken from property that the owner must receive compensation for it. The question still stands as to whether the state caused the land to become valueless by restricting the building upon it. Justice Blackmun argued, "... yet the trial court, apparently believing that 'less value" and 'valueless" could be used interchangeably, found the property 'valueless"" (Blackmun 5).

He goes on to propose that the land still held value because Lucas could enjoy it in other ways, such as camping, swimming, picnicking, or placing a mobile home on it. The value of the property often lies in the eye of the beholder. In Colorado, a piece of legislation is being proposed that might become a model for other states where property rights are concerned. The Private Property Protection Act would allow "a landowner to seek compensation when a regulation takes away more than fifty percent of the land"s value" (McClaughry 4).

This act hopes " to establish a standard for the most serious regulatory takings and to afford a method of relief for a landowner whose rights have been taken" according to McClaughry (McClaughry 8). In 1997, Senator Hatch (R-UT) introduced a piece of legislation called the Citizen"s Access to Justice Act. This Act would "reduce delay and expense of litigation by clearly defining when a property owner"s claim is ripe" for adjudication (Annett 2). This piece of legislation would help speed the process that is so costly for property owners.

The Private Property Rights Implementation Act was passed in October of 1997. This Act helps owners pass their first hurdle by allowing them to have the merits of their case heard in federal court. The Tucker Act Shuffle Relief Act, also passed in October of 1997, helps citizens pass the second hurdle by "resolving the jurisdictional question for federal courts" (Annett 3). Even though the Supreme Court"s ruling in Lucas looked promising for property rights advocates, it turned out not to be such a big win after all.

Justice Scalia limited the application of the ruling to total takings, excluding partial takings. The distinction between total and partial takings "is arbitrary and inconsistent with the purposes of the Takings Clause" (Butler 3). It is possible that one landowner could lose more money on a piece of property that is only partially taken and not receive compensation for it, when another landowner could be compensated for a piece of land that is not wholly worth as much as the other owner"s partial piece. The Supreme Court"s partial versus total taking has made a big impact upon lower court judges however.

The lower courts are using the decision as a standard by which to judge regulatory property rights cases across the board. Many defendants are attempting to use the ruling, to fight prohibited construction on their land, where it is not applicable. Defendants "cannot claim their land is valueless simply because they might have developed it in the future" (Butler 5). The other relevant part of the Lucas decision is that "if the activity was previously permitted under relevant property and nuisance principles, then the prohibition of the activity would be a total regulatory taking that must be compensated" (Butler 6).

Justice Blackmun ponders whether the government is going to be able to continue if it must weigh the possibility of compensation when making laws outlawing serious dangers to society. However, if all economically beneficial uses are not destroyed by the regulation, then it does not matter whether or not the activity was previously permitted. Another case of regulatory property taking that is still on the state level is the expansion of the Minneapolis-St. Paul Regional Airport. With the expansion of the airport, increased air traffic would be flying over the nearby Minnesota Valley National Wildlife Refuge.

In compensation for the affects on the habitat, "... the Fish and Wildlife Service is going to be paid over $20 million" (Young 1). However, the money is going to come from fees and charges placed on people using the airport. When someone from the private sector causes detriment to federal lands they must compensate the government for the lost lands. The end of Lucas v. South Carolina Coastal Council remains to be told. The South Carolina Supreme Court ordered the state of South Carolina to purchase the two lots in question from David Lucas.

The state then put the two lots on the market as residential sites. Perhaps the "courts should look beyond the public-interest rhetoric and examine the validity of the alleged public purpose" (Butler 7). This is the other side of regulatory takings. If the states are required to pay property owners millions of dollars for the land in question, are they going to be able to uphold the Acts and legislation that got them there? Locke"s natural rights seem to conflict over the regulatory taking of private property.

The natural right to life appears to have precedent over the natural right to property according to the government"s actions in dealing with regulatory takings. The government says that the taking of the land is in the best interest of society, but rights of the individu! al are being overlooked. When the taking is free to the government, it appears to be a good plan of action for them. When the government must pay for their land, they weigh the pros and cons of their decisions a little more heavily. The Lucas case is full of precedents, good and bad, for both sides of the issue of regulatory takings.

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