Helping Our Peninsula's Environment
 
Community Rights vs. Property Rights

No one has any sacred or legal right to do anything they want with property they own.

A government can restrict any use of property if it can make a fair argument or "any rational basis" for the public control of that property.

If zoning exists, it can strongly restrict the activities one can do. You generally cannot drill an oil well in a residential area (except in Houston).

Pollution that travels beyond a property line (bullets, sewage, smoke, light, radiation, , and noise) can be extremely restricted, is a trespass, can be a nuisance or strict liability, and in many cases is absolutely prohibited with large penalties.

Government wanting to control private property only becomes a taking when they take away ALL (100% or at least 95%) of the economic use of that property. If they leave you as much as 15 percent of the land for economic gain - there is essentially no possible "takings" challenge.

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Key US Supreme Court Takings Rulings

The U.S. Supreme Court has consistently and solidly ruled that -

  • Zoning Is Constitutional 
  • A County or City can Downzone an area by half or even as much as 85% without causing a "taking." 
  • A County or City can Downzone land by 100 percent to protect public health and safety with no taking. 
  • A County or City can Downzone land by 95 percent for environmental protection with possibly no taking. 
The following are the well known U.S. Supreme Court cases that illustrate these principles. 

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  • ZONING IS CONSTITUTIONAL 
Village of Euclid v. Ambler Realty Co. (1926) 

This case brought (unsuccessfully) by the real estate industry established the constitutionality of zoning ordinances. 
 

  • MERELY DIMINISHING THE VALUE OF PROPERTY BY HALF IS INSUFFICIENT TO DEMONSTRATE A TAKING - THUS CONSTITUTIONAL 
Concrete Pipe, Inc. v. Construction Laborers Pension Trust (1993) 

In this post-Lucas case, Supreme Court returns to traditional Penn 

Central three-part formula and reaffirms that mere diminution in property value (in this instance, nearly 50%) does not amount to a taking. The Court expressly distinguished the generally applicable three-part test from the limited Lucas test, which applies only in cases involving the complete "destruction' of the economically viable use of real property The Court held that Concrete Pipe's required 46% pay-out to withdraw from a multi-employer pension plan was not a taking. The nearly 50% property diminution fell far short of the complete destruction of economically viable use of the property. 
 

  • A 100% ECONOMIC LOSS EQUALS A TAKING, BUT SOMETIMES 95% IS NOT A TAKING.  
Lucas v. South Carolina Coastal Council (1992) 

The rule: A regulation amounts to a taking if it removes all economically viable use of property... Lucas is a narrow holding because very few regulations remove all economically viable use of property. 

"It is true that in at least some cases the landowner with 95% loss will get nothing, while the landowner with total loss will recover in full. But that occasional result is no more strange than the gross disparity between the landowner whose premises are taken for a highway (who recovers in full) and the landowner whose property is reduced to 5% of its former value by the highway (who recovers nothing). Takings law is full of these all-or-nothing situations."

* The exception:... unless the regulation is consistent with the state's Traditional (common) law of nuisance and property. 

In my opinion this means that government may prohibit any development where it would be a nuisance or a health or safety hazard. 

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So in summary - 

* Legislation can downzone land by 85 percent for environmental protection with no taking.

* Legislation can downzone land by 95 percent for environmental protection with possibly no taking.

* Legislation can downzone land by 100 percent to protect public health and safety with no taking.

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This Page Last Updated April 21, 2004