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And Justice for All: The State Experience with Property Rights Legislation

Issue Analysis

Title

And Justice for All: The State Experience with Property Rights Legislation

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The ownership of private property has been a cornerstone of our nation’s system of government from its inception.  As the Supreme Court declared in 1972, "a fundamental interdependence exists between the personal right to liberty and the personal right in property.  Neither could have meaning without the other.   That rights in property are basic civil rights has long been recognized."

When the government regulates the use of private land for a public purpose and causes a diminution in the value of land due to the restrictions on use, the private land has been taken for public use.   The increasing frequency of regulatory takings has generated a steadily growing concern among private property owners.   As the federal, state, and local governments continue to expand their regulatory authority, the limitations imposed upon property uses increase as well. Citizens across the country are finding that they are unable to farm or ranch their land as a result of government regulation of endangered species and wetlands.

Although the Supreme Court has shown a growing willingness to protect property rights over the last decade, landowners still must confront excruciatingly vague judicial standards as to whether compensation for a taking is due.  Given the limited relief available from the courts, these property owners are increasingly turning to their state legislatures for relief.

The primary purpose of state property rights legislation is to expand the scope of protection offered to private property owners.  Litigation is far too time consuming and unpredictable, not to mention the fact that the diminution in value must be fairly substantial in order for the property owner to benefit from the remedies currently available.  Compensation statutes, on the other hand, provide a clearer standard for determining what constitutes a regulatory taking and when compensation is due.

Texas and Florida have the most comprehensive regulatory takings compensation legislation enacted to date.  In 1995, these two states became the first to expand current takings law to protect property owners within their borders.  Both the Florida and Texas laws substantially extend the concept of a regulatory taking beyond the present boundaries established by the Supreme Court.  Each statute not only imposes significant restrictions on a broad range of governmental activities, but also creates a process to resolve takings issues.

Efforts to enact further property rights protections at both the state and federal level have met with substantial resistance from federal regulators and a environmental activist groups.  Property rights opponents allege that providing greater protection for property owners will necessarily impose substantial burdens on government agencies and inhibit environmental protection.  Yet, the experience of states that have enacted property rights legislation, particularly Florida and Texas, suggests these claims are unfounded.  The costs of providing greater protection have been greatly exaggerated.  Property rights legislation, particularly measures that facilitate legitimate takings claims against government regulators, can provide significant benefits for small landowners and force government officials to pay more attention to the human costs of their edicts.  State experience to date suggests compensation legislation is a modest step that ensures greater protection of property rights without inhibiting essential government functions.

Property rights are essential to the preservation of individual liberty and a market economy.  In recent years, states have rushed to the forefront of providing protection for private property rights by enacting much needed legislation.   It is time for other states —and even the federal government, to follow suit.