Restoring Rights to Property Owners : Supreme Court Curbs Abuses by Planners, Zoners, Regulators

” . . . Nor shall private property be taken for public use without just compensation.” That seldom-discussed clause in the Fifth Amendment to the U.S. Constitution, a part of the Bill of Rights, has finally been given the effect and respect to which it is entitled.

In two recent opinions by the U.S. Supreme Court (First English Evangelical Lutheran Church of Glendale vs. County of Los Angeles and Nollan vs. California Coastal Commission), the rights of individual property owners have been vindicated, and, one hopes, the overreaching and abuses of the planners, zoners and regulators like the California Coastal Commission will at least be modestly curtailed.

During my 17-year tenure on the California Court of Appeal I have been shocked at the frequency with which regulatory agencies have visited injustice and hardship on individual citizens in the name of planning and land-use control. I have been equally shocked by the fact that in no single case of which I am aware did the American Civil Liberties Union, with its charter for the vindication of constitutional liberties, appear to champion the case of the victimized property owner.

In fact, the organizations and individuals who are generally in the forefront of the battle to protect individual liberty in the areas of freedom of speech and press (First Amendment), freedom from unreasonable searches and seizures (Fourth Amendment) and freedom from self-incrimination (Fifth Amendment) seem to take the position, when the right of private property contained in the Fifth Amendment is at issue, that individual rights should give way to a “public right.” This latter notion stands the Bill of Rights on its head. The entire thrust of that venerable document is that individual rights and liberties are to be protected against the government’s assertion of a public need which impinges on those rights and liberties.

The constitutional guarantee that protects private property from governmental confiscation is the one guarantee that most dramatically sets our country apart from the socialist states that recognize no individual rights and that subordinate individual freedom and property rights to the welfare of the state. And while so-called land developers have been made the bogymen in many of these cases, the fact is that in most of the cases that I have seen in which the regulatory agencies have overreached, the victim was an individual small property owner.

Witness the case of Whaler’s Village Club vs. California Coastal Commission, in which individuals sought nothing more than the ability to shore up their sea walls to prevent storm and tide damage to their homes. The state, through the Coastal Commission, attempted to extort dedication of private property to the public in exchange for a permit to perform these modest improvements. Tragically, the commission was successful.

The publicity given to these disputes has tended to characterize them as pitting the “greedy” property owner against the need for recreational facilities, the need to protect our precious natural resources or the need to preserve open space.

What has been overlooked or ignored is that the state, through its power of eminent domain, has always had the ability to accomplish these worthwhile goals. Of course, the exercise of the power would mean that the public would have to pay for the land acquisitions. It is simply unfair, however, and, as is now clear, unconstitutional to force individual property owners to bear the full burden of the public benefit.

I can’t help but note the comparison between the trend in this country of vigorously protecting individual rights vis-a-vis the police in the enforcement of criminal law and the opposing trend of denigrating individual rights in the area of planning, zoning and land-use regulations.

The criminal law in this country is designed to protect an individual’s right to life, liberty and property against the predators among us. Theft, rape, robbery and murder are not “political” crimes. Yet we often hear the statement that unless the police are restrained in this endeavor, we will have a “police state.”

If a police officer in a uniform and wearing a badge were to trample the rights of citizens in the same manner as those rights are trampled by planners and regulators in other branches of government, the reaction would be swift and the outcry deafening. Yet these latter violations of constitutional rights have until now been ignored and even legitimized by some of the courts as simply being “for the public good.”

Now, one hopes, more attention will be paid to the injustices that are perpetrated against individuals in the name of land-use regulation, and there will blossom a new awareness that the right to private property is as fully protected by the Constitution as are our other civil rights.

We must be eternally vigilant in ensuring that a police state does not develop in this country, but frankly, as I see it, the enforcement of criminal laws as a method of protecting individual rights poses less of a threat than the enforcement of oppressive administrative regulations, which are essentially political in nature and designed to protect “public rights,” even though the enforcers are dressed in business suits and carry no badges.

Once the government achieves the power to deprive citizens of their right to private property, both real and personal, by regulation of its use or by confiscatory taxation, other rights that might survive would be of little value.