Property Rights and Eminent Domain

Ellen Frankel Paul

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351496261
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

In a country built on the institution of private property, property-owner rights have been under attack. By arguing that private property is a fundamental liberty whose protection deserves the highest priority, Ellen Frankel Paul challenges one of the dominant trends of the past half century: the erosion of property rights via zoning and land use restrictions, carried on by government exercising its "police power" or promoting "the public interest."

Paul begins by examining the arguments of environmentalists in support of land-use legislation, and explores a few particularly troubling examples of the exercise of eminent domain and police powers. She traces the philosophical arguments for the two powers as well as their tortuous judicial history, the meaning of property rights and investigates how previous thinkers have defended these rights is detailed, and Paul suggests a more adequate defense for them. In the concluding portion of the book, the very legitimacy of eminent domain is questioned and the author offers recommendations for its reform.

This analysis is wide in scope and makes creative use of historical, legal, economic, and philosophic methodologies. It not only gives an account of the present power regulations on land, but also provides an exhaustive history of the development of the law in these two areas and of the philosophical ideas of the thinkers who helped shape this process. This book is distinctive because it places a theory of the just acquisition of property at the heart of the answer to the question of the extent to which governments can rightfully exercise the powers of eminent domain and police.

"Amazingly, in a country built on the institution of private property, the right to property in land has been under increasing assault, and has seldom been defended. Paul's book--by arguing that private property is a fundamental liberty whose protection deserves the highest priority--is a major step toward filling the void."--Robert Hessen, Stanford University

1
Environmentalism and Property Rights

The Land-Use Battleground

Imagine that you are a skilled watch repairer who owns a small shop in a lower-middle-class, ethnically heterogeneous neighborhood in downtown Cincinnati, Ohio. You are far from wealthy, yet your modest business affords you many satisfactions, not the least of which is a long association with your customers, some of whom recall the days when your father, and even your grandfather, fixed their watches and exchanged pleasantries in this very same store. Then one day you hear disturbing rumors. The city council, which wishes to revitalize the downtown area, is contemplating a proposal from a group of out-of-state developers to construct several luxury hotels, condominiums, and office buildings. To attract this development, the city will have to offer a convenient downtown location, parking facilities, and various public services. Lamentably, the block upon which your shop now stands lies precisely at the spot where the projected redevelopment will occur. Several months later you receive a condemnation notice: your property will be taken from you. You are to receive “fair market value” and relocation costs, but no recompense for such psychic detriments as loss of business goodwill, possible loss of income due to the dismemberment of the community from which you drew your customers, and the incalculable losses associated with leaving a business you loved.¹ This is eminent domain.

Now imagine that you are a retired salesperson who, through hard work and thrift, has amassed enough money to purchase a lot in an attractive development along the northern coast of California. Your dream is to build a small hideaway where you can spend your declining years close to nature and free from the smog and congestion of metropolitan life. Attaining building permits for your dream house from the county does not prove insurmountable, but a seemingly insuperable obstacle lies ahead. Something relatively new, the California Coastal Commission, has different plans for your town, plans that include the provision of public beaches and public accessways. These accessways, as things turn out, must be carved out of your lot. Unfortunately, your lot lies within a planned development, and you, as an individual lot owner, are subject to a deed restriction by which the homeowners’ association forbids any further subdivision of your land. You are unable to accommodate the demands of the Coastal Commission for accessways across your property. Other homeowners who already have constructed homes on their lots are not at all disturbed by your predicament because the commission’s moratorium on new construction does not adversely affect them. Indeed, it enhances the value of their holdings. Naturally, they are unwilling to alter the deed restrictions affecting your property. You are powerless to comply with the demands of the commission for public access, but you are prohibited from building until you do comply. You are now owner of a nearly worthless lot upon which you must continue to pay property taxes to the state of California, the very agency that rendered your property useless.² This is the police power.

These are not hyperbolic examples. Property owners throughout the United States increasingly hold their land tenuously, as “stewards” for the “public interest” rather than as absolute owners free to determine how their land shall be used, disposed of, or developed. If you own a marsh and wish to dredge and fill it to construct condominiums, you may find that state law prohibits any modification to the marsh that alters its natural state. If such filling were permitted but your land happened to fall within a state coastal zone, you would be confronted with a myriad of bureaucratic stumbling blocks. These might include local zoning commission permits, or state permits if your project had more than local impact, or forced dedication of public accessways to the ocean, or height and density restrictions to preserve scenic vistas, or possibly a requirement to construct “affordable” units for low-income people, or the entire project might be vetoed. Property owners face uncertainties, costly delays, and outright prohibitions against the development and use of “their” land. Undeniably, government has arrogated a substantial portion of what has traditionally been considered by Americans to be the prerogatives of property owners. Rather than confining its role to the protection of owners in the enjoyment of their land—that is, the role assigned to it by John Locke—government now sees its function in more interventionist if not feudal terms.

Since the mid-1960s governments in the United States have moved away from the Lockean individualism that infused the thought of our founding fathers and their earlier successors. They have enacted land-use regulations the spirit of which reflects feudal more than Lockean conceptions of land ownership. For the Englishman, John Locke, property belonged to an individual not because a king granted it to him, but because he “mixed his labor” with it and thereby transformed it into something separate and distinct from the common, unowned land in the state of nature. This view contrasts markedly with the feudal notion of property as a system of privileges imposed from the top rather than generated by individual initiative.

It is ironic that today many environmentalists explicitly reject these Lockean notions of land as an absolute dominion in favor of a nostalgic vision of duties, obligations, and a sense of community supposedly exemplified by the feudal land tenure system, that is, the system of conquerors and not of free men.³ Environmentalists think of themselves as progressives, yet some of them feel an affinity for a reactionary system; this is puzzling. E.E Roberts, to cite just one example, enthusiastically embraces a return to a more feudalistic conception of landholding. In “The Demise of Property Law,” he writes:

We may yet choose a new praxis. Zoning and local government devices demonstrably have not worked very well to control haphazard development and urban sprawl…. that is, we might choose to socialize land, at least on the urban fringes, and then either keep it in public ownership, leasing it back to private use, or sell it back to private use at a subsidized price after stamping it with covenants locking it into regional master plans…. within the traditions of property law, moreover, there is nothing particularly radical in visualizing land being owned by the sovereign and being channelled out again to persons who would hold it only as long as they performed the requisite duties which went with the land. In this instance, of course, instead of knighthood service, the landholder would have to hold and use his parcel according to the purposes set forth in the regional or statewide master plan.⁴

Thomas Jefferson presumably would be aggrieved at our calm acceptance of a slide back toward a feudal notion of the state as ultimate authority over the use and disposition of land. As a shaper of the Northwest Ordinance and the Virginia Constitution, Jefferson vigorously contended for the abolition of all remnants of the feudal landholding system. He argued in favor of allodial ownership instead, ownership in which estates would be held in absolute dominion free of any feudalistic obligations to one’s lord or the state. Such feudal remnants as primogeniture and entail were anathema to him as badges of serfdom imposed upon free Saxons after the Norman Conquest. It was precisely this conception of property as the prerogative of the state, to be dispensed at the discretion and pleasure of William the Conqueror and his successors, whether kings or states, that Jefferson abhorred.⁵ If the state held ultimate ownership of all land, then it could at any time reduce any man to penury, or worse, to serfdom, as William had dealt with the vanquished Saxon freeholders after the Battle of Hastings. Then, surely, no man could long remain secure in his freedom.

Most proponents of an expanded state role in determining land use do not see themselves as embracing a return to feudalism. Rather, they focus upon the supposed waste and environmental degradation foisted upon society by rapacious developers who are concerned only with profits and care nothing for the welfare of future generations. To replace these individual market decisions, they advocate some form of state or national land-use policy that will collectivize decision making while leaving the ownership of property in private hands. To go further than this and urge outright land nationalization would, of course, be nearly suicidal as a political strategy, given the American hostility toward anything that overtly smacks of socialism. However, it is possible to imagine that the current process may one day lead to the same result. First, property owners are denied portions of their decision-making powers through such devices as local zoning or state planning in areas of critical environmental concern. Gradually even that amount of control seems insufficient, and property owners suddenly find their land declared a scenic treasure, which they may never develop. Eventually, the rights of property ownership may become so eviscerated that explicit land nationalization will seem politically acceptable.

To recognize the credibility of such a scenario one need only examine the land-use legislation passed by the federal government in recent years, all of which extends governmental control over decisions previously left to individuals. Should the market provide housing or should the state intervene? With a whole series of legislative acts—from the Housing Act of 1949, to the Demonstration Cities and Metropolitan Development Act of 1966, to the Fair Housing Act of 1968, to the Urban Growth and New Community Development Act of 1970, to the Housing and Community Development Act of 1974—the federal government has become a direct provider of housing.⁶ It also subsidized nearly all new apartment complexes, encourages the destruction of old neighborhoods via urban renewal and, later block grants to localities,⁷ and mandates standards of racial impartiality in the rental and sale of housing. Is the quality of our environment a private, local, or state concern, or is it a federal problem? Again, the policies pursued in the past fifteen years have resoundingly shifted the balance in the direction of federal involvement. A few of the most conspicuous federal efforts are the Clean Air Acts of 1963 and 1970, the National Environmental Policy Act of 1969, the establishment of the Environmental Protection Agency in 1970 and the Council on Environmental Quality in 1969, the Water Quality Act of 1965 (which created the federal Water Pollution Control Administration), the far more rigorous federal Water Pollution Control Act Amendments of 1972 (which mandated the eradication of all pollution in navigable waters by 1985), and the Solid Waste Disposal Act of 1968. Should landowners control the use of their marshes, beaches, bogs, and coastal land or should the federal government? Again, recent policy decisions have shifted the locus of control from individuals and local government to Washington. The Federal Coastal Zone Management Act of 1972 called for statewide planning for coastal conservation, with the federal government paying 80 percent of the planning bill.⁸

As this sampling of federal legislative initiatives indicates, the early 1970s spawned an elaborate apparatus of controls over the use of land, water, and air. Even more notable than the successes of those who favor greater control over land use was their one conspicuous legislative failure: the attempt to enact a national land-use policy. A pronouncement by President Richard Nixon in 1970 illustrates the sentiment behind that attempt:

Today we are coining to realize that our land is finite, while our population is growing. The uses to which our generation puts the land can either expand or severely limit the choices our children will have. The time has come when we must accept the idea that none of us has a right to abuse the land, and that on the contrary society as a whole has a legitimate interest in proper land use. There is a national interest in effective land use planning across the nation.⁹

From 1971 to 1975 the Nixon administration’s bill competed with another one introduced in the Senate by Henry Jackson and in the House by Morris Udall. The intent of the two proposals was roughly similar. Both bills envisioned federal funding on a modest scale ($800 million over eight years in Jackson-Udall; $100 million over five years in the administration bill). The money would be used to promote or mandate (depending on which version of the two bills one inspects) state land-use planning, with the federal government ultimately judging the adequacy of the state plans. Under the Nixon proposal, states that did not qualify for the planning grants would be penalized by reductions in their federal grants for highways, airports, and recreational facilities. Both proposals justified national land-use planning on the ground that areas of critical environmental concern needed immediate protection. The Jackson bill passed the Senate in 1972, but failed in the House. In 1974 a version of the same bill died in the House on a 211 to 204 vote.¹⁰

It is difficult to suppose that if these plans had been adopted matters would have ended there. As Bernard Siegan observed, the penchant for regulation, once appeased, takes on a driving force of its own.

Few, if any of the benefits that better planning and more regulation are supposed to bring about will actually occur…. The expectations created by the rhetoric will remain just expectations. The usual pattern emerges anew. The existing legislation will be condemned as inadequate, and new and more restrictive legislation will be sought and probably obtained. A greater federal role will continue to evolve as each new legislative version fails again to meet the expectations of the rhetoric. The same people will find that the landscape and the buildings are still not beautiful and that housing problems still remain. The chronology of local zoning will be repeated; the failure of existing land use controls leads down the Parkinsonian path to more, or more severe, controls, not less, or less stringent, ones.¹¹

We were prevented from taking the first step down this path by a handful of votes in the House of Representatives.

But the environmentalist activism of the past few years has not been limited to shifting the locus of control over land use to the federal government. Of equal or even greater impact has been the veritable flood of state land-use programs. These seek to supersede local zoning authorities and regulate land that falls into the nebulous category of land inv...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. Environmentalism and Property Rights
• 2. The Genesis and Development of the Eminent Domain and Police Powers
• 3. The Right to Private Property: Does it Exist? Where Does It Come From? Is Absolutism Defensible?
• 4. Conclusion: Resolving the Constitutional Muddle
• Index of Legal Cases
• General Index