Conscious Choice: Takings: Responsibility Gone Awry

January 1996

Takings: Responsibility Gone Awry

by Andrew Savagian

If you follow national politics at all, or if you profess to know anything about your state or local governments, then the following words have special meaning to you: Takings; Private Property Rights; Wise Use; Fifth Amendment. If you recognize these words, then the folks behind the "takings" movement or "private property rights" movement have been successful in reaching you with their message, whether you agree with it or not.

If you do not recognize these words, it’s possible you’ve been out of the country for the last two years, you don’t own any land, or like Colin Powell you’ve had it with the lack of civility in politics.

Whatever the case may be, if you have a stake in this country’s future, you will want to read on.

An American Debate
Whatever your focus on what’s happening in America — takings, Wise Use, property rights, militia crazies — it is undeniable that our country is in the midst of the greatest debate about land use, government, and the rights of the people since the Civil War.

Town governments, county boards, state legislatures, Congress, business councils, churches, taxpayer alliances, corporations, county planners, even your local tavern owner have all weighed into the fight about government and the rights of individuals, states, and communities. According to USA Today, more than 500 groups have organized around the so-called "private property rights" movement, also known as "takings."

Those individuals pushing the takings issue will tell you it’s based on the Constitution’s Fifth Amendment, which states that anytime the government "takes" your land — for a new highway or public works project, for example — the government must "justly compensate" the landowner for the loss of that land.

While this basic, fundamental right makes plain sense to most Americans, a few others have decided the terms "take" and "justly compensate" need more definition. They want the government to compensate landowners in nearly every circumstance in which the government tries to tell them what to do. Here are some examples:

• If the state requires landowners to build away from a wetland to protect the economic, aesthetic, and wildlife values that go along with that wetland, the state must compensate the landowner.
• If a restaurant owner must install wheelchair access ramps, the government must compensate the owner for having to install the ramps.
• If zoning keeps someone from building their 8,000-square-foot dream house, or health codes keep a company from putting its landfill next to an elementary school, the government must pay them not to build on their land.

Sound nuts? In 1995 seven states had passed property-rights legislation based on the above examples; overall, 18 states now have takings laws on the books. Another 30 states have introduced similar bills in their legislatures this year. And don’t forget to check the Contract With America’s section on property rights — it’s full of takings language and rhetoric.

How Takings Proponents Succeed
The people who call themselves property-rights advocates spin a tale of government abuse, about how the state picks on poor, defenseless property owners in EveryTown, America. Their main poster boy is David Lucas, a real estate developer from South Carolina. In 1986, Lucas purchased two parcels of property along the Carolina coast; he wanted to build a home on one plot and develop the other. However, the 1988 South Carolina Assembly passed the Beachfront Management Act, which protects eroding ocean coastline from human impact and, of course, prevents people like David Lucas from developing their properties.

Lucas cried foul, and the state granted him a variance to allow his development. But he claimed his land had lost all economic value and that he must therefore be compensated for his losses. After fighting and losing at the state level, Lucas took his case all the way to the Supreme Court.

In the majority opinion, Justice Antonin Scalia described the Court’s definition of property rights contained in the Bill of Rights: "...the Fifth Amendment is violated when land use regulations do not substantially advance legitimate state interest or deny an owner economically viable use of his land." While not agreeing to compensate Lucas, the Court opened the debate over how much taking requires just compensation by using the term "substantially." Takings advocates are now pushing for laws that require compensation if 30-50 percent of the land’s economic value has been taken.

Takings proponents have a long list of these "too much government" victims. Another case involves Lois Jemtegaard, a Washington state native who was unable to sell her plot of land because Congress had established the property as a national scenic area in 1986. According to Jemtegaard, her property values dropped.

It’s a very successful strategy; anyone fighting takings initiatives finds it very hard to successfully refute this scenario. Political wonks also warn groups not to get involved in a "my victim vs. your victim" debate, because invariably the pro-takings victims win out.

This strategy has worked its magic in two very clear and frightening ways. One, it convinces state and local legislators that landowners are unjustly oppressed; politicians know "protecting the little guy" is a great re-election strategy. Second, takings bills scare lawmakers, zoning commissioners and the like into inaction, and freezes their ability to govern the people and protect communities.

Who wants to propose an ordinance for establishing parkland if Mr. Jones sues city hall for millions in lost development dollars? In Fort Lauderdale, Florida, lawmakers postponed modern zoning laws due to a new state takings bill that would provide extra compensation to landowners.

Takings proponents themselves admit they don’t care if takings laws actually get on the books — they just want to throw the fear of God and the U.S. court system into the people who work for government — and they’re succeeding.

The REAL Takings Movement
This story may sound like a true grass-roots movement, and the newspaper stories may paint a similar picture, but a little investigation peels away the myth of Landowner David vs. Big Government Goliath. Granted, there is some truth to the rhetoric — landowners can get screwed by bureaucracy and government corruption — but what they don’t tell you about takings is who supports the David Lucas types: who benefits the most from takings laws and why.

While Lucas tells his story as if he’s one of many poor oppressed souls, he often fails to mention that the Pacific Legal Foundation (PLF) filed an amicus brief (friend of court) on his behalf during the Supreme Court battle, and provided legal counsel for his oral arguments. The PLF is a California-based organization that is a major opponent of environmental and civil rights legislation. Lucas has also received help from other right wing groups, including the Institute for Justice — the group that smeared Lani Guinier, President Clinton’s nominee for assistant attorney general, as a "quota queen" — and The Defenders of Property Rights, a Washington, DC-based group, run by a former Reagan official.

These landowners not only get backing from groups like the PLF, they also serve as fronts for several big money interests. The American Legislative Exchange Council, a conservative think tank with funding from Phillip Morris, Coors, Texaco, and other corporations, is a major backer of many property rights and takings organizations. Under the guise of takings, corporations and businesses are using victimized landowners to get all they can out of local communities and their tax coffers. Some more examples:

• In 1994, the M&J Coal Company of West Virginia sued the state because it claimed lost "property rights" when the Office of Surface Mining tried to enforce mining regulations.
• A chemical company from North Carolina sued the state because officials there could not get a permit to operate a hazardous waste facility on their land. The land, officials argued, was already contaminated and could only be used as a hazardous waste dump; to deny the permit was a "taking" of their property rights.
• Exxon has threatened to sue the State of Wisconsin because the state and Native American governments want to keep Exxon’s copper and zinc mine out of northern Wisconsin; the company wants millions of dollars in lost revenue as compensation for taking its profits.

Hogs and Logs
What initially seems like a public revolt over land use issues is actually a revolting misuse of citizens’ concern over government, and the chemical, coal, and oil companies are not the only industries with an interest in takings legislation. The agribusiness, logging, home-building, and flood insurance industries are also supporting takings groups and takings bills, hoping to push away any regulation of their businesses and profits.

In 1994, Premium Standard Farms, a large hog-farming operation in Missouri, proposed a "hog-confinement facility" in the middle of Lincoln Township, a small rural community of 250 residents. The proposed facility would have handled 80,000 pigs with nine holding ponds, and would have generated 130,000 gallons of waste water per day, equal to that of a human population of 170,000.

The township refused to allow the hog farm, mainly because residents had recently approved new health and safety rules for their community to "protect property values, secure the best economical use of the land and promote sound development of the commercial, industrial, and residential property."

True to the takings strategy, Premium Standard officials immediately sued the 250 residents for $7.9 million, claiming the township was "taking" their profits. The issue is now tied up in court.

Lest anyone think these companies all lose their cases in court, don’t forget the Miller Brothers Oil Corporation of Traverse City, Michigan. In September, a court ruled that state taxpayers must shell out $59.5 million to Brothers Oil for refusing to allow the company to drill for oil in the environmentally sensitive and protected Nordhouse Dunes.

Officially, the list of supporters of property rights and takings make up a who’s who in the corporate world, including Amoco, the American Mining Congress, the American Petroleum Institute, the American Pulpwood Association, the Chemical Manufacturing Association, Chevron, Dupont, and Exxon.

Fighting Back
On the flip side, the groups organizing against takings bills represent a broad spectrum of the population. Besides environmental and civil rights groups, takings opponents include the American Family Association, the American Public Health Association, Business and Professional People for the Public Interest, the League of United Latin American Citizens, Trout Unlimited and the United Steel Workers of America.

Despite the apparent strength of takings arguments, opponents have found the weak links in the property rights armor. In Arizona, for example, voters overwhelmingly rejected a 1994 takings proposition based on the tremendous costs to the taxpayers. Alabama activists have been successful in keeping takings bills off the lawbooks for two years, mainly because of the substantial costs to the state for implementation.

Indeed, "Takings Raises Taxes" has been a successful battle cry in many states. The Wisconsin Department of Agriculture, Trade and Consumer Protection estimated that a 1994 "takings" bill would total more than $10 million per year for administrative costs alone. A Maryland fiscal summary of a proposed \"takings" bill estimated that, to even attempt a cost appraisal would total $10,000 for each commercial or industrial property affected by the new bill. Both of these takings initiatives were defeated.

An even more effective and proactive strategy has been employed by LEAN, the Louisiana Environmental Action Network. The Network and other state groups were successful in defeating a recent takings measure, based on the high cost to implement the bill and from the testimony of Florence Robinson, a LEAN board member and one of the nation’s strongest environmental justice proponents.

Speaking to the Louisiana state legislative committee reviewing the bill, Robinson thanked the Republican, pro-takings advocate for introducing the measure and asked that the state legislature immediately approve the bill. If the bill became law, Robinson explained she would hire "more New York lawyers than you can shake a stick at" to help her sue petroleum and chemical companies polluting her community, because they are "taking" her profits by polluting her land and lowering her property values. The bill died in committee.

By using the pro-takings argument and turning it against takings advocates, Robinson and LEAN may hold the key to defeating the corporate takeover of the property rights movement in America.

The Real Issue: A Question of Responsibility
Regardless of the battle against big money interests and corporations, there still remains the debate over land use and property values. Landowners, communities, activist groups and the general public still must sift through the rhetoric and hyperbole to find out how best to deal with our shrinking land resources.

In Wisconsin, a new takings bill is in the state legislature this year. Pam Porter and Larry Clausen, with Wisconsin’s Environmental Decade, are working with a coalition fighting the bill. Clausen believes strongly in property rights, but not the kind takings advocates would support.

"We believe no person has the right to use his or her property in a way that reduces the value of someone else’s property, or threatens another’s health or well being," said Clausen.

Unfortunately, while scuffling over takings, government, and the conservative agenda, we forget about the critical land use issue Clausen refers to — our responsibility to our fellow neighbor as members of a society and a community. Responsibility, an idea as old as government rule itself, is what’s really behind the land use debate.

Whether purposefully or accidentally, perhaps we have framed the debate in the wrong context, and therefore argue the wrong issues and ask the wrong questions. Instead of "What can I do with my land?", the question should be "How will my actions affect my neighbor?"

The notions of "Common Good" and "Government For the People" are not new concepts; Benjamin Franklin wrote, "Private property is a creature of society and is subject to the calls of that society." However, these concepts rarely make it to the fore of land use arguments. Should we pay David Lucas millions of dollars because he wants to build in a place his community is trying to protect? Why are we paying companies like Brothers Oil in Michigan to stay out of pristine environments to the tune of $59 million? And why are the residents of Lincoln Township punished for $7.9 million simply because they want to protect the economic and environmental health of their land?

Once people start asking the right questions, the right ideas begin to emerge. Clausen and other Wisconsin activists point out that pollution and development should not be inalienable rights in this country, as the takings advocates would like us to believe. They assert that a clean environment and a healthy community should be our basic constitutional and human rights, instead of privileges for a select few.

That means that an individual landowner trying to develop his 40 acres does not outweigh the needs of hundreds or thousands of people that live in his community. True, in certain cases landowners should be compensated. But the answer to our land use dilemma is not to compensate everyone for everything we ask to them to do for society.

It may be time to change the way we think about land, property, and our ability to govern. Did the authors of the Constitution and the Bill of Rights intend a limitless definition of property that takings proponents desire? Or is the social belief of the Common Good one worth fighting for?

If you care at all about this issue, and about the future of this country, you’d better stay tuned.

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