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by Timothy Egan - 05/15/95
(c) 1995 N.Y. Times News Service
GRANITE FALLS, Wash. - Rarely does an issue unite an anti-pornography
preacher in Mississippi, the cultural elite in New York City and
families living here in the cozy towns of the Cascade foothills.
But the Private Property Rights Act, which sailed through the House
of Representatives in March, has managed to do just that, bringing
together the most unlikely of allies to oppose legislation that could
affect more people than anything else considered by the new Congress.
Taken together, the House bill, a barely noticed provision of the
Republicans' Contract With America, and an even broader measure that
has been proposed in the Senate would require taxpayers to compensate
property owners whenever the government did something that reduced
the value of the owners' holdings.
The Fifth Amendment to the Constitution already requires "just
compensation" for land that is "taken" for public use. But the new
proposals would carry the concept of compensation to a level rarely
approved by the courts, which have long weighed public concerns
against private property rights.
The move in Congress is aimed largely at environmental laws that
restrict development of wetlands or land that is home to endangered
species. Landowners argue that by regulating such property, whether
by imposing limits on logging to protect the habitat of rare birds or
adopting provisions against the draining of swamps that contribute to
clean water, the government has reduced the property's value and so
essentially "taken" it.
"Through its regulations, the government is destroying property
values at an unprecedented rate," said Nancie Marzulla, president of
Defenders of Property Rights, an advocacy group based in Washington,
D.C. "We need an across-the-board statute, because the government
needs to know that if it takes something there is a big price to
Rep. Tom DeLay of Texas, the House Republican whip, calls the bills
"an answer to a growing movement of property owners at the grass-
roots level who believe their rights are being infringed upon."
But opponents maintain that some of the language in the bills, and
similiar proposals in at least 30 states, is so broad that it amounts
to an attempt to rewrite the Fifth Amendment and therefore amend the
Constitution on the sly.
The House bill would compensate property owners only for a loss of
value resulting from environmental regulation. The Senate bill, and
one just passed here in Washington State, would apply to virtually
any government regulation and, like the House measure, even to
enforcement of regulations already adopted. The Interior Department
estimates that the cost resulting from surface-mining regulation
alone would be $27 billion.
Opponents everywhere along the political spectrum say these bills
could dramatically change American life for the worse. They raise a
number of questions:
What if a government entity decided that a topless bar could not open
next to a church, or that an open-pit mine was not appropriate on
farmland with shallow wells, or that the flight path of incoming jets
had to be changed? Would acts of government even as routine as these
require taxpayers to pay the owners of property that declined in
value as a result?
Is a commercial seller of assault weapons entitled to payment when
Congress bans them, as one gun dealer in California has claimed?
Would a motel owner be entitled to compensation if he could prove
that complying with the public accommodations provisions of federal
civil rights law had reduced the value of his business, as an owner
in Georgia has asserted?
And, since the House bill defines "the right to receive or use water"
as property, would taxpayers have to pay irrigators the full market
price for the federal water they get at heavily subsidized rates
when, as has occurred in California, it is taken away to meet the
needs of a drought-stricken city?
And what about the person or neighborhood adversely affected by the
absence of government action? If an oysterman loses shellfish because
somebody in a nearby tidal wetland fills in part of the swamp, where
does he go to recover what he has lost?
Property rights advocates say the critics' parading of such horrors
is little more than scaremongering. Government, they note, would
still be able to regulate property when it posed a threat to public
health or was considered a nuisance. Even environmental regulation
would continue; it would simply cost more.
But the problem, legal scholars say, is in defining a nuisance or
health threat. As a regulated activity, most industrial polluting is
not now a nuisance legally. To any number of judges, a topless bar
might not be a nuisance, and so taxpayers might have to pay full
value to prevent it from opening in a neighborhood from which it had
been barred. For that reason, the Rev. Donald E. Wildmon, president
of the conservative American Family Association in Tupelo, Miss.,
calls a property rights bill proposed in his state "the porn owners'
Defining the point at which property protection becomes community
nightmare is one of several snags hampering the property rights
movement just as it approaches milestone victories in Congress and
state legislatures around the country.
Sen. Phil Gramm of Texas has made property rights one of the top
items in his campaign for the 1996 Republican presidential
nomination. In so doing, he has pushed the Senate majority leader,
Bob Dole of Kansas, regarded as the front-runner for the nomination,
into supporting broad compensation measures, which Dole earlier
opposed as budget-busting. President Clinton has vowed to veto the
takings bills in Congress, saying they amount to a new entitlement
program that would harm most American homeowners.
Only one state, Arizona, has put the new theory of takings to a
popular vote. Last November, when Republicans won virtually every
race in the state, three-fifths of the voters there opposed a measure
that would have required that before any regulation could take
effect, state or local officials consider whether it violated
That proposal had been criticized as a bureaucratic mess that would
have burdened suburbs and cities alike any time they so much as asked
developers to include a ball field or a bicycle path in a new
Last month, acting on an initiative financed by the timber and
building industries, the Washington State Legislature passed the
nation's first major overhaul of traditional takings laws.
Developers and many landowners have applauded the legislation, saying
they are tired of carrying on their backs so much of society's demand
for open space, clean water and species diversity. But the measure
has horrified local governments, which fear it would make zoning laws
The measure has already had some unintended consequences. Two days
after it passed, property owners who had been considering selling
parcels of land to the Seattle Parks Department at a big discount
decided to hold off, city officials said. The owners stood to make
more money by forcing the city to pay them full market value in a
As an initiative, a proposal that does not originate within state
government, the Washington measure cannot be amended in the
Legislature or vetoed by the governor. It will become law unless
90,000 signatures against it are gathered by midsummer, which would
prompt a statewide vote in November.
The measure construes as a taking any effort by governments to
enforce height limits on buildings or restrictions on where
billboards can be placed, or to make laws for the historic
preservation of certain areas.
Restrictions on historic preservation in general have riled cultural
interests in New York City, who worry that laws protecting airspace
over landmark buildings could be made impotent by a blanket mandate
that governments pay for any action that reduces maximum property
And in New Orleans, some people wonder what the French Quarter would
look like without property regulation.
"These kinds of proposals are terribly dangerous," said Christina
Ford, the planning director of the City of New Orleans. "Our powers
are mostly persuasive. We try to prevent a city from looking like a
fence on a windswept prairie that has collected all the debris thrown
Billed as a boon for small landowners, the property rights movement
has stirred even some of them against it.
Five years ago, when Steve Mansky found his dream home here in
Granite Falls, a small town about 35 miles northeast of Seattle, he
thought he was buying himself a respite from the noisy clutter of
Then came a proposal to build the state's largest gravel and sand
quarry just a stone's throw from Mansky's home. If the project is
approved, as many as 600 trucks a day will rumble down the valley's
narrow main road and around its blind curves. The road, designated a
National Scenic Byway, is heavily traveled by tourists venturing into
the North Cascades.
"The quarry owners have admitted that there are going to be
"conflicts' between gravel trucks and pedestrians," Mansky said. "I
guess that's a politically correct way of saying people are going to
get run over."
Should Snohomish County, where Mansky lives, choose not to change
zoning regulations to allow an industrial use like a quarry in
Granite Falls, its decision could be viewed under the Washington
State measure as a government taking that required full compensation,
The property rights debate is anecdote-driven. For every story on one
side, there is one on the other.
The case of O.C. Mills, for example, was evoked on the floor of the
House. He is a Florida man who purchased swampland in 1986, tried to
develop it, then was convicted and jailed for repeatedly violating a
Federal regulation against draining wetlands. His case is "one of the
starkest illustrations of how crazy regulations have become over the
past 20 years," said Representative Joe Scarborough, Republican of
But others say that if onerous regulations are the problem, they
should be changed, or be enforced with more common sense, not made
victim to a stealth attack on all laws protecting the public weal and
In an effort to still critics of the Endangered Species Act, the
Clinton administration recently announced that small landowners would
be exempt from the law's major requirements, and set incentives for
people who serve as good stewards of the environment.
But many Republicans say such incremental steps are not enough. Even
if Clinton vetoes the legislation now being considered by Congress,
they plan to carry the property rights banner all the way through
next year's presidential election.
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