Property Rights Drive Picks Up More Ground

In the past two years, the property rights movement has racked up its first political and judicial victories, winning recognition from both members of Congress and a few important judges and juries.

On the legislative front, the movement counts as its biggest success to date a two-punch knockout on the wetlands issue. Late last summer, the Bush Administration agreed to narrow the definition of wetlands used since 1989, eliminating many of the controversial “dry wetlands” that are not permeated by standing water much of the year.

Two weeks later, President Bush signed into law a budget rider ordering the Army Corps of Engineers, which administers the federal wetlands law, to use the less stringent 1987 definition of wetlands until Congress or the Administration addresses the question anew.

Movement officials also count as a victory the attempted inclusion in the highway bill of a measure requiring federal agencies to consider the potential payment of private property taking claims resulting from any regulation of governmental action.

The provision, sponsored by Sen. Steve Symms (R-Ida.), was stripped out of the final bill just before passage, partly at the behest of environmentalists who feared it could undercut a wide range of laws protecting public health and safety. Symms has vowed to push the issue in Congress this year.

Movement officials also believe they are making headway in the courts, with the Lucas case the most prominent so far.

“There is great interest in getting before the Supreme Court because it is a more permanent solution than the legislatures offer,” said San Francisco attorney Mark L. Pollot. He was one of the authors of an executive order signed by then-President Ronald Reagan directing federal agencies to weigh the potential costs of property compensation claims when issuing regulations.

Dust from the Lucas decision has yet to settle, as both environmentalists and property rights groups claim victory.

Los Angeles land-use attorney Gideon Kanner is among those who believe the decision will not have much impact because it did not break new legal ground and it is of limited applicability.

“Extremely few jurisdictions have the unmitigated gall of the South Carolina Coastal Council to regulate somebody’s property the way Lucas’s was regulated,” by limiting any alternative uses of it, he said.

Most localities, agreed Los Angeles attorney Katherine E. Stone, avoid such a quandary by providing exceptions or offering offsets such as a transfer of development rights. Stone filed a brief in the Lucas case on behalf of more than 75 California cities.

However, one aspect of the decision--which cautions local governments against ignoring general land use plans when making zoning exceptions--serves as a warning in cases like Los Angeles’ Warner Ridge controversy, Kanner said.

After spending nearly $750,000 over two years, the city dropped its defense of a City Council decision to rezone a 21.5-acre site in Woodland Hills to single-family housing despite the existing community plan designating the area for commercial development.

Lucas, in an interview following the Supreme Court’s decision, said he felt vindicated. The ruling, he said, should give “hope to others facing serious harm and personal ruin that they can do what I did a little easier.”

Ironically, Lucas said the same company that helped the state draw the imaginary line beyond which no development can occur is the same one he hired two years earlier to advise him on the purchase of the properties. At the time, Lucas said, the consultant reported that not only was the beach front stable but growing each year.

“When I bought the lots I was in total compliance with all rules and regulations. I had satisfied myself from the ecological and hydrological studies I had done that in the long run this was a pretty safe investment of money as far as Mother Nature goes,” Lucas said.

Property rights activists had also hoped that the U.S. Supreme Court’s decision to hear two other private property rights cases besides Lucas this session foretold a favorable trend, only to meet with disappointment.

In March, the court dismissed the case of PFZ Properties Inc. vs. Rodriguez. The developer claimed that the Commonwealth of Puerto Rico had violated the equal protection and due process clauses of the Constitution by failing to act on his building permit applications, which had been pending over 11 years.

In April, the court in the case of Yee vs. Escondido rejected a mobile home operator’s claim that he is due compensation because a rent control statute amounted to a physical taking of the property. However, the opinion left open the possibility of a challenge on regulatory taking grounds, several court observers said.

Paul Edmondson, acting general counsel for the National Trust for Historic Preservation, said the disposition of three cases dashes the hopes of the property rights movement that the court would substantially expand private property rights and curtail state regulatory powers.

The lower courts, which have made substantial awards in some cases, still hold promise, though, said Nancie C. Marzulla, head of Defenders of Property Rights, a Washington, D.C.-based nonprofit litigation group. For example, the federal government was hit with a $120-million judgment for enforcing a surface mining law that devalued the company’s coal mining leases in Wyoming, she said.