Property ruling is twice blessed - US Supreme Court decision to protect property rights - Column

0 Comments | Insight on the News, August 8, 1994 | by Bruce Fein

In late June, the Supreme Court issued a landmark constitutional ruling substantially strengthening the right to obtain just compensation when the government commandeers Private Property for public use. Writing for a 5-4 majority in Dolan vs. City of Tigard, Chief Justice William Rehnquist declared that to escape from a duty of compensation, the government must demonstrate a "rough proportionality" between the public detriments attributable to the current or Prospective use of the property and the corresponding restrictions imposed to offset such burdens.

The Dolan Precedent is twice-blessed: Its "rough proportionality" requirement is faithful to the constitutional text and PurPose of the just compensation duty. And its mandate that government pay for the economic injury it fastens on the few, to benefit the many, deters excessive regulation. Challenges to rent-control laws should soon determine whether the constitutional acorn of Dolan grows into a mighty oak.

The facts Of the case are common Place. A store owner sought a city permit to redevelop his 1.67-acre site to intensify its commercial use by constructing new structures and parking space. To obtain the Permit, the city insisted that the owner dedicate a portion of the property for improvement of a storm-drainage system. It further demanded that an additional 10 percent Of the Parcel be assigned as a pathway for pedestrians and bicychsts. The first condition was required as a Precaution against increased water runoff caused by paying the property. The second was imposed to mitigate the traffic congestion resulting from redevelopment. The Oregon SuPreme Court rejected the owner's constitutional challenge to the permit conditions, but the Supreme Court reversed the decision.

Rehnquist observed that the Fifth and 14th amendments prohibit government from taking "Private Property ... for public use, without just compensation!' The just-compensation Purpose, Rehnquist emphasized, precludes the selective conscription of a handful of owners to pay the costs of Providing a public good enjoyed by all.

This mischievous propensity of numerical majorities worried the founders. In Federalist No. 10, James Madison elaborated: "The most common and durable source of [political] factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society." He also noted that, since political majorities naturally slight the interests of minority factions, courts should be skeptical of government justifications for impairing property rights. In a legendary footnote penned in United States vs. Carokman Products Co. (1938), much haloed by liberals, the Supreme Court also suggested that exacting judicial scrutiny of government action is warranted when the ordinary operation of the political Processes naturally tilts toward tyranny or injustice.

Consonant with the Takings Clause purpose and the irresistible impulse of political majorities to stick the costs of government on one or a few, Rehnquist found the permit conditions constitutionally wanting. The city had neglected to establish a need to forestall floods through partial ownership of the doveloper's land in lieu of restrictions on its use. Moreover, no attempt had been made bY the city to quantify the volume of increased traffic lifted to the proposed commercial development that the pedestrian and bicycle Pathway might plausibly offset. Absent such findings, Rehnquist concluded, the city must pay the owner for the land it took to reduce flood hazards and vehicular traffic.

The Dolan ruling represents the Supreme Court's stoutest defense of private property in 50 years. It abandoned Precedents that had saddled owners with virtually insurmountable burdens of proof to show an unconstitutional impairment of property rights. The burden is now on the government to prove a "rough proportionality" between the impairments and the public harms or dangers engendered by the affected property. That shift is proper; otherwise, government routinely would indulge fatuous assumptions to shift what ought to be government costs to property owners - a form of private welfare for government.

In sum, Dolan removes government from the welfare rolls, an extravagance without constitutional sanction.