Take No More

The growth in state-level takings laws

In March, the House of Representatives passed a bill that would compensate landowners when federal land-and-water-management programs such as the Endangered Species Act and the Clean Water Act lower property values by more than 20 percent. The Senate is considering—and, according to most Hill watchers, is likely to pass—legislation that will kick in when value is decreased by 30 percent. The Senate measure would apply to all federal land-use regulations.

As Congress slowly marches toward a federal takings law, the states have been moving forward at a faster clip. Since the state of Washington passed the first takings bill in 1991, 17 other states have followed suit. Twelve of those states—from Arizona to Wyoming—passed the bills in the first half of 1995 alone.

Takings laws are usually classified as either assessment or compensation measures. Assessment legislation is more prevalent, and typically requires an agency to ensure that its regulations will not lower property values to the level of a taking. Compensation bills offer property owners remuneration for lost value once a certain threshold is crossed (usually when property value is diminished by 20 percent to 50 percent).

Takings legislation has been initiated and supported by groups ranging from small local property rights organizations to the National Federation of Independent Businesses, says Lisa Jaeger, deputy counsel at Defenders of Property Rights, a Washington, D.C.-based public interest legal foundation.

"The states have always led the way in advancing property rights legislation because the courts have abdicated their responsibility by not safeguarding constitutionally protected property rights," says Jaeger.