Elevating Private Property Rights

July 09, 1994

For a number of years, Chief Justice William Rehnquist has tried to make economic rights as fundamental as the rights of free speech and religion, a fair trial and other Bill of Rights guarantees. Now he has succeeded.

In an opinion for a court split 5-4, he wrote that when a government "takes" land from a private owner in certain situations, it must accept a greater obligation to pay for it. Property owners have always been able to sue for compensation in such cases, but governments have had more leeway than they will now have to prove the property owner need not be compensated.

The case involved a plumbing supply company in Tigard, Ore. The owners wanted to expand. The town said they could have a building permit -- if they gave up some of their property for public projects that would offset the expansion's environmental impact. The owners sued, charging they were giving up more than was fair, and should be paid for their loss. The Supreme Court agreed that Tigard had not proved its demand was "reasonable." Chief Justice Rehnquist says that now the government has to prove, in each individual case, that the private burden imposed is not greater than the public harm to be avoided. He calls this new test of reasonableness "rough proportionality."

How this phrase will be interpreted by other courts is unclear, but as Justice John Paul Stevens put it in dissent, one outcome will be that governments now face a "new constitutional hurdle" when they are trying to deal with such legitimate public interests as "floods and traffic congestion" that result from development. He could have added pollution and school overcrowding among many other public concerns that governments often have to protect against by denying private owners the right to use their property as they see fit.

Government should not be arbitrary when dealing with property rights and other economic interests. Courts should always be vigilant against that. But for over half a century, if governments proved land-use plans were rational, impartial and in the public interest, the presumption was they were valid and not a "taking" requiring compensation. Landowners could overcome that presumption, but the burden of proof was on them. Now it isn't. That could make it more difficult for state and local governments to impose developmental restraints and requirements that have served the public well.

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