Local politics could hurt the initiative. Robb points out that the Grand Canyon State is an unusual mix of populist conservatives and conservationists, a state that simultaneously sent Barry Goldwater to the Senate, Mo Udall to the House, and Bruce Babbitt to the governor's mansion. "The legislature is strongly pro-business and hostile to environmentalists," says Robb. "On environmental issues," by contrast, "the people have a strong preservationist ethic." Property-rights protections, though they benefit many average citizens, aren't really populist measures but protections against tyrannical majorities or powerful activist groups.
And while initiatives and referenda often provide legislative vehicles for political outsiders, qualifying and passing an initiative can take years of education and promotion and cost hundreds of thousands of dollars. Peggy Riegle says backing initiatives isn't as important for the property-rights movement as lobbying legislators because many lawmakers are receptive to land owners and have passed property-rights bills. Arizona's vote may test the movement's broader appeal.
2) Federal courts. The Dolan decision marks a departure from earlier takings cases for two reasons: It prohibits the regulators' use of "unconstitutional conditions" in land-use restrictions, and it requires the government to prove--before enforcing regulations--that there is a "rough proportionality" between its regulations and the "legitimate state interests" it is trying to advance.
The Court has traditionally prohibited governments from forcing individuals to surrender civil liberties in exchange for other rights. For instance, it clearly would be unconstitutional for a city to permit a person to build a home only if the home owner gave up his right to vote in the next election. The Dolan decision extended the unconstitutional conditions doctrine to property rights. Here, it ruled that a business owner can't be forced to build a public bike path in exchange for a permit to expand an existing hardware store without giving the owner compensation.
The Court also challenged the long-standing notion that business regulations are less important than restrictions on free speech or other civil liberties. Since the 1930s, the courts have established a hierarchy of rights: Certain civil liberties, such as voting and free speech, have received greater protection than property rights. As a result, most business regulations, no matter how draconian, have withstood constitutional challenges.
In Dolan, the Court began to restore property rights to the level of other civil liberties. Governments must now prove that their regulations, including land-use restrictions, are proportional to the public purposes they are trying to achieve. Otherwise, courts can strike down those regulations. Chief Justice William Rehnquist wrote for the majority: "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances."
While the Dolan case dealt with an "exaction" (a condition placed on land use) that involved an actual invasion of private property, the Court strongly suggested that certain development fees and other monetary exactions might be unconstitutional as well. Three days after Dolan was decided, the Court ordered the California Court of Appeals to reconsider its ruling against Richard Ehrlich, the California tennis-club owner.
Ehrlich challenged the impact fee Culver City assessed, arguing that the tennis courts he operated were private. The Court of Appeals agreed with the city: "We do not find the distinction between public and private recreational facilities to be compelling," ruled the court. "The City had a legitimate need for community recreational facilities, whether public or private, and both the land-use restriction and the mitigation fee served that same need."
Counters James Burling, senior property-rights attorney at the Pacific Legal Foundation, "The city may need additional lights, sewage treatment, and streets" as a consequence of building new condos. "But there's not a need for a new park or tennis courts." PLF will file an amicus brief in support of Ehrlich.
Since nearly 90 percent of local governments impose monetary exactions on new development (up from 10 percent in 1960), a favorable ruling in Ehrlich could foreclose many land-use restrictions. "Applied consistently," says attorney Scott Bullock of the Institute for Justice, "the Dolan precedent will strike down unjustified exactions and largely end what was a growth industry in government-condoned extortion."
3) Congress. Tauzin's amendment to the desert bill was the fourth major victory for the property-rights movement in this session. Earlier, property protections were added to the bills establishing the National Biological Survey and elevating the Environmental Protection Agency to cabinet status. After the amendments were added, greens removed both bills from consideration.
The Senate also added amendments to the Safe Drinking Water Act requiring a "takings- impact analysis" for any regulation that might cause a taking of property and mandating cost-benefit analyses for any regulations costing more than $100 million. (See "Bill Killers," August/September.) In the House, property-rights advocates and representatives from small towns that might not be able to afford expensive new purification systems may add even tougher amendments. Greens may take the drinking water bill off the table for the rest of the year as well.
Until now, property-rights advocates in Congress have mostly played defense, attaching amendments to noxious bills with the hope that they could weaken them. Democratic congressional barons have bottled up stand-alone proposals by Tauzin, Rep. Jimmy Hayes (D-La.), and former Sen. Steve Symms (R-Idaho) in the environment committees, never letting them reach the floor of the House or Senate for a vote.
But property protectors are fighting back. Tauzin has proposed HR 3875, the Private Property Owners Bill of Rights. Tauzin's bill would define as a taking any regulation under the Endangered Species Act or the wetlands provision of the Clean Water Act that reduces a land owner's property value by 50 percent or more. To keep the bill from being gutted or bottled up in committee, he has filed a discharge petition--a procedure that requires the entire House to consider the bill without any modifications. Before the petition can take effect, Tauzin must collect the signatures of 217 other members. At press time, the discharge petition had 140 signers.
In the Senate, Phil Gramm (R-Tex.) will soon introduce a more radical bill, the Private Property Rights Restoration Act. Gramm's bill would assume that a taking occurs when any new regulation "restricts, limits, or otherwise infringes a right to real property that would otherwise exist." The bill would give a property owner standing to sue the government for compensation when a regulation temporarily or permanently reduces the owner's property value by at least 25 percent or $10,000, whichever is less. (The bill would exempt regulations that prevent pollution and other "public nuisances.")
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