High Court Rules On Property

THE area of law where the Supreme Court was most primed for asserting an activist role on the right this term concerned property rights.

People with a stake in government regulation - from environmentalists to historic preservationists to mobile-home owners - were concerned about a dramatic shift of power from public regulators to private-property owners.

But property rights became the dog that didn't bark this court term.

On June 29, the court decided in favor of an owner forbidden for environmental reasons from building on his South Carolina beach front lots.

The court told the South Carolina Coastal Council it would need to justify better why it should not compensate the property owner for the cost of his now-undevelopable land.

In so doing, the court signaled government agencies and legislators that when regulatory action strips all economic value from property, a legitimate public purpose is not enough. Owners may have to be compensated, just as if their land was taken for a freeway right-of-way.

At the same time, the court did not make it much easier for property owners to win in such cases. Green laws hurt owners

A growing number of claims against government agencies are moving through the lower courts now by landowners alleging that wetlands protections, the endangered-species act, and restrictions on surface mining amount to "takings" of their real property.

The court now says, in effect, that such suits are fair game, but didn't do much to clarify who would win.

"The question of how far government can go is still enormously complex and open to speculation," says Jerome Kayden, senior fellow at the Lincoln Institute of Land Policy.

"I think it's going to have the effect of making government agencies somewhat more circumspect in denying landowners all economic use of their property," says James Ely Jr., a Vanderbilt University law professor and author of a book on property rights.

Property rights leapt onto the court calendar last fall, when the justices accepted three such cases within a month. The move seemed to foreshadow a more aggressive role for the court in protecting property rights, which have not enjoyed a status in the courts as high as civil liberties for decades. Two cases rejected

Two of the cases fizzled. One was a suit by a Puerto Rico developer stymied for eleven years in getting permits to build a hotel. He alleged that he was denied due process. The court announced this spring, after hearing arguments in the cases, that it had erred in hearing the case in the first place and rejected it.

Another case was by the owner of a San Diego county mobile- home park. He alleged that the rent-controls the city of Escondido put on his plots amounted to a regulatory taking that he should be compensated for. He lost.

Lucas v. South Carolina Coastal Council was the easiest case for property-rights advocates because the facts were extreme.

Mr. Lucas bought the land before the laws were passed that barred him from building and rendered his land virtually worthless.

But the extreme circumstances also narrow the impact of the decision. It only applies to the rare cases where regulation has left property without an economically viable use. When that occurs, government can still avoid compensating losses when its action is based in traditional public nuisance law.

"This court, thus far, is not worshiping at the altar of property rights, even though it occasionally enters the temple," says Mr. Kayden.

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