Taking Charge

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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."