L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 114, March 26, 2001
March Militia Madness
Lone Property Rights Case Before the Court This Year
by Vin Suprynowicz
Special to TLE
Property rights have spent long, dark decades in this country since the rise of Woodrow Wilson and his "Progressives," 90 years ago.
In the end, the "Progressive" -- or collectivist, or redistributionist, or socialist ... whatever chameleon colors they've adopted most recently -- doesn't believe a private person can own anything, down to and including our own bodies, our children, or the fruits of our labor.
All these things belong to some mythical "social collectivity," you see, on whose behalf the current ruling class can seize, transfer, or re-allocate anything and anyone, from the third of your paycheck you never see, right down to children pulled out of loving homes and placed in far-more-dangerous "foster care" because parents resist pertussis vaccinations or try to take them off their government-mandated Ritalin.
Of course, America grew great precisely because free citizens were allowed to work hard and store away their earnings for a rainy day, investing the surplus in various private enterprises.
The opposite theory is that wiser government "managers" should seize whatever's needed so press gangs of conscript workers can complete the new steel mill on time to meet the "five-year plan." And if that sounds good to you, I understand there are currently plenty of job openings in many a "workers' paradise," such as scenic downtown Smolensk.
So champions of restored American property rights -- I among them -- sounded premature hosannas when the U.S. Supreme Court seemed to finally reverse this erosion, handing down its landmark 1990 decision in the case Lucas vs. South Carolina Coastal Council.
Lucas owned a building lot on one of the barrier islands off the coast of South Carolina. Flood control regulations barred him from actually building anything on it, but the authorities denied they'd "taken" his property under the Fifth Amendment, since he was still allowed to hold title ... and pay property taxes. Thus, no one owed him anything for merely taking away the productive use of his property.
Until the court spoke, that is. The Lucas decision held there could indeed be a regulatory "taking," that government had to pay a land owner "just compensation" as required under the Fifth Amendment, even if they only "took" the land by passing regulations sufficient to render it unusable.
"Unfortunately, the Lucas case didn't turn out to be the watershed that some editorialists and legal commentators predicted," explains Harold Johnson, an attorney with the Pacific Legal Foundation in Sacramento. "Regulators and courts have gotten around the rule of Lucas by, among other strategies, creatively discovering residual value even in heavily regulated properties."
Three weeks ago, attorneys for PLF traveled to the Supreme Court to argue the case of 80-year-old Anthony Palazzolo, who for 40 years has been denied the right to develop 18 acres of salt marsh that he owns in Westerly, R.I.
"Because he would be permitted to build a single family home on a small parcel next to the salt marsh, the R.I. Supreme Court refused to recognize a compensable taking," attorney Johnson explains. "Never mind that the house would be worth at most $200,000, less than a tenth the value of the salt marsh area if he could build homes or a beach club on it."
Mr. Palazzolo is seeking $3.1 million -- or the right to build his beach club, where there would be calm waters, an 8 p.m. curfew and "no drunks."
As he looked over the marsh and pond this January, Palazzolo pointed to nearby cottages and told a reporter for the Providence Journal-Bulletin: "People did what they wanted around here and nothing happened. I ask for permission, and I get nowheres."
One technicality the land-grabbers are using in Mr. Palazzolo's case is that he used to hold the land in the name of a corporate entity. And although the new development restrictions were put in place after that corporation bought the property, when he transferred ownership into his own name that constituted a new "acquisition"; the new "buyer" should have been aware the restrictions were in place.
"That theory relegates property rights to second-class status," answers attorney Johnson. "You wouldn't be barred from challenging a city government's First Amendment violation merely because the offending law was on the books when you moved to town and you were 'on notice' of the violation."
Many among the eco-extremists squawk that if the high court holds for Palazzolo -- a decision is expected this spring -- it could become prohibitively expensive for bureaucrats to wave their magic wands and declare vast swatches of the American landscape off limits for productive use, the better to "protect the habitat of the threatened yellow mealworm," or whatever.
Well, good. There's a price to be paid for such arrogance, and the government has no right to impose that price on unwilling victims. Pay up -- from your constitutionally limited revenues -- or downsize your rapacious schemes.
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