The U.S. Army Corps of Engineers refuses to let a rock quarry owner fill a wetland, putting the quarry out of business. Or a government regulator cancels a mining lease after the mining company has spent $5 million exploring the property. A bill introduced in the U.S. Senate by Steve Symms (R-Idaho) and David Boren (D-Okla.) attempts to prevent such unconstitutional takings of property.
The Fifth Amendment prohibits the government from “taking” private property for public purposes without “just compensation.” But under current law, if a regulation keeps someone from building on his land, all the property owner can do is sue the government and hope a judge will award damages.
Most private citizens don’t have the time or money to challenge government regulations. So the Symms-Boren bill the Private Property Act of 1991, or S. 50-attempts to stop the regulations that cause takings before they’re enacted.
If the bill passes, any new federal regulation or regulatory action by a federal agency must be reviewed by the attorney general to see if the act would cause a taking. However, cautions Jerry Taylor, a legislative director at the American Legislative Exchange Council, S. 50 merely requires the government to report takings; it doesn’t require compensation for them.
ALEC has drafted its own takings bill to rein in state and local governments. It defines a taking as any regulatory action that reduces property value by at least 50 percent. And it makes the government pay property owners for their losses.
Suppose a farmer wants to convert a parcel of pasture worth $20,000 into housing tracts. Developed, the land would be worth $200,000. But a zoning law prevents the farmer from carving up the land. Under the ALEC bill, the farmer could either force the government to buy the land for $200,000, or he could make the government buy his right to develop the land. (If the farmer and the government disagreed about the value of the development rights, a jury would settle the dispute.) The ALEC bill also requires the government to pay the landowner’s legal costs when it loses a takings case.
At least 11 state legislatures are considering versions of the ALEC bill. Trent Clark, a Symms legislative assistant, says variations of the Symms-Boren bill are pending in six other states.
Taylor applauds Symms and Boren for trying to tackle the surge of takings; still, he calls S. 50 “a timid first step.” He believes the ALEC bill would be a more effective check on government power: Nearly 70 percent of all takings result from state and local rules such as zoning laws or slow-growth ordinances. And unlike S. 50, the ALEC proposal requires payment to landowners when takings occur. “With our bill,” Taylor says, “you don’t have to trust Congress or [Environmental Protection Agency chief William] Reilly to protect your property.”