Balancing Private Balancing Private Property Rights and the Property Rights and the Public InterestPublic Interest

Rebecca RobertsRebecca Roberts

Property rights issueProperty rights issue

Societal goals are sometimes Societal goals are sometimes pursued through government pursued through government restrictions on the use of private restrictions on the use of private property. property.

Political momentumPolitical momentum

Increasing government regulation of Increasing government regulation of private property.private property.

Supreme Court protections for private Supreme Court protections for private property are tightening.property are tightening.

Strong cultural meaning founded in Strong cultural meaning founded in American concepts of freedom, liberty American concepts of freedom, liberty and citizenship. and citizenship.

Property rights Property rights movementmovement Supporters:Supporters:

– Seek to reduce government Seek to reduce government regulation of landregulation of land Landowners Landowners Industries with direct economic interest Industries with direct economic interest Conservatives, libertarians and other Conservatives, libertarians and other

related political platformsrelated political platforms

Property rights Property rights movementmovement Opponents:Opponents:

– Recognize societal benefit of Recognize societal benefit of government ability to regulate government ability to regulate private property useprivate property use EnvironmentalistsEnvironmentalists State and local governmentState and local government Planners, preservationists, scientistsPlanners, preservationists, scientists Civil rights, public health, etc. Civil rights, public health, etc.

Legal basisLegal basis

Takings Clause of the U.S. Constitution Takings Clause of the U.S. Constitution provides legal basis for land laws.provides legal basis for land laws.

Public policies that affect property Public policies that affect property rights are created locally.rights are created locally.

Court decisions outline principles for Court decisions outline principles for balancing public and private interests in balancing public and private interests in land.land.

55thth Amendment Amendment

“…“…nor shall private property be nor shall private property be taken for public use without just taken for public use without just compensation.”compensation.”– 55thth Amendment, U.S. Constitution, Amendment, U.S. Constitution, (1791) (1791)

Reiterated in Wisconsin Reiterated in Wisconsin Constitution Constitution

55thth Amendment Amendment

Recognizes:Recognizes: Private property ownershipPrivate property ownership Eminent domainEminent domain ““Takings”Takings” Requirement for just compensationRequirement for just compensation

Real property Real property ownershipownership Real propertyReal property

– Physical land, improvements, Physical land, improvements, vegetation, subsurface minerals, vegetation, subsurface minerals, water rightswater rights

Real property Real property ownershipownership Fee simple absoluteFee simple absolute

Fee simple interest in Fee simple interest in real property is real property is three-three-dimensionaldimensional, , extending within the extending within the bounds of the parcel bounds of the parcel perimeter upward and perimeter upward and downward, and downward, and indefinitely into the indefinitely into the futurefuture

Real property Real property ownershipownership

Owner may divide fee simple:Owner may divide fee simple:1.1. Physical partitionPhysical partition

2.2. Usage rightsUsage rights

3.3. TimeTime

Real property Real property ownershipownership Land ownership has been Land ownership has been

described as a “bundle of described as a “bundle of greengreen and and redred sticks” sticks”

Real property Real property ownershipownership Green sticksGreen sticks = right to make = right to make

profitable or pleasurable use of profitable or pleasurable use of land land

– Right to build, till soil, cut timber, Right to build, till soil, cut timber, exploit minerals, etc. exploit minerals, etc.

Real property Real property ownershipownership Red sticksRed sticks = duties of real = duties of real

property ownership property ownership

– NuisanceNuisance– Property taxationProperty taxation– Public regulationPublic regulation

Real property Real property ownershipownership Society creates and defines property Society creates and defines property

rights.rights.

Social, technological economic and Social, technological economic and political changes constantly “redefine” political changes constantly “redefine” property rights.property rights.– SlaverySlavery– Civil rights Civil rights

– AirplanesAirplanes

Eminent domainEminent domain

Eminent domainEminent domain = state and local = state and local governments have authority to governments have authority to acquire private property for public acquire private property for public use. use.

Takings Takings

TakingTaking = an unconstitutional = an unconstitutional government appropriation of government appropriation of private property rights.private property rights.

Evolution of takings Evolution of takings lawlaw Each of the notable takings cases Each of the notable takings cases

has a lesson.has a lesson.

Evolution of takings Evolution of takings lawlaw

3 types of takings claims:3 types of takings claims:1.1. Physical invasionsPhysical invasions

2.2. Compelled dedicationsCompelled dedications

3.3. Regulatory measuresRegulatory measures

Physical invasionsPhysical invasions

Physical occupation by a Physical occupation by a governmental unit or the public is governmental unit or the public is a taking a taking per seper se, even if the , even if the occupation is temporary or occupation is temporary or minimal.minimal.– Loretto v. Teleprompter Manhattan CATV Loretto v. Teleprompter Manhattan CATV

Corp.,Corp., 458 U.S. 419 (1982) 458 U.S. 419 (1982)

Required dedicationsRequired dedications

““Essential nexus” test Essential nexus” test = = exactions or conditions on exactions or conditions on development must be related to development must be related to policy objectives and project policy objectives and project impacts. impacts. – Nollan v. California Coastal Commission,Nollan v. California Coastal Commission,

483 U.S. 825 (1987)483 U.S. 825 (1987)

Required dedicationsRequired dedications

““Rough proportionality” testRough proportionality” test = = exactions or conditions on exactions or conditions on development must be proportional development must be proportional to the particular harm posed by to the particular harm posed by the development.the development.– Dolan v. City of Tigard,Dolan v. City of Tigard, 512 U.S. 374 (1994) 512 U.S. 374 (1994)

Regulatory takingsRegulatory takings

Regulations may cause a taking Regulations may cause a taking even if there is no physical even if there is no physical invasion.invasion.– Pennsylvania Coal Company v. Mahon, Pennsylvania Coal Company v. Mahon, 260 260

U.S. 393 (1922) U.S. 393 (1922)

“… “… while property may be regulated to a certain while property may be regulated to a certain extent, if regulation goes too far it will be extent, if regulation goes too far it will be

recognized as a taking.”recognized as a taking.” – Justice Oliver Wendell HolmesJustice Oliver Wendell Holmes

Regulatory takingsRegulatory takings

““Influential factors” for Influential factors” for compensable and non-compensable and non-compensable takings:compensable takings:1. Economic impact1. Economic impact

2. Reasonable investment-backed expectation2. Reasonable investment-backed expectation

3. Character of government action3. Character of government action

– Penn Central Transportation Company v. Penn Central Transportation Company v. New York City, New York City, 438 U.S. 104 (1978)438 U.S. 104 (1978)

Regulatory takingsRegulatory takings

Regulatory takings are based on Regulatory takings are based on consideration of the parcel-as-a-consideration of the parcel-as-a-whole. whole. – Concrete Pipe v. Construction Laborers Concrete Pipe v. Construction Laborers

Pension Trust,Pension Trust, 508 U.S. 602 (1993) 508 U.S. 602 (1993)

In contrast:In contrast: Physical invasions need only Physical invasions need only consider affected portion of propertyconsider affected portion of property

Regulatory takingsRegulatory takings

Owner must be denied all, or nearly Owner must be denied all, or nearly all reasonable economic use of a all reasonable economic use of a property for a taking to occur.property for a taking to occur.– Penn Central Transportation Company v. New Penn Central Transportation Company v. New

York City, York City, 438 U.S. 104 (1978)438 U.S. 104 (1978)

When regulation removes all When regulation removes all economic value from a property, it economic value from a property, it is a taking is a taking per seper se..– Lucas v. South Carolina, Lucas v. South Carolina, 505 U.S. 1003 (1992)505 U.S. 1003 (1992)

Regulatory takingsRegulatory takings

Reasonable, investment-backed Reasonable, investment-backed expectations established prior to expectations established prior to regulation are protected.regulation are protected.– Penn Central Transportation Company v. New Penn Central Transportation Company v. New

York City, York City, 438 U.S. 104 (1978)438 U.S. 104 (1978)

Limitations on landowner title at Limitations on landowner title at time of purchase do not result in time of purchase do not result in taking.taking.– Lucas v. South Carolina, Lucas v. South Carolina, 505 U.S. 1003 (1992)505 U.S. 1003 (1992)

Regulatory takingsRegulatory takings

Average reciprocity of advantageAverage reciprocity of advantage = if an owner benefits from a = if an owner benefits from a regulation then his/her diminished regulation then his/her diminished property value will less likely be property value will less likely be viewed as a taking.viewed as a taking.

Takings or givings?Takings or givings?

““Givings”Givings” = benefits of public = benefits of public regulatory policies, planning regulatory policies, planning decisions and investments. decisions and investments. – Unequally distributed Unequally distributed – Taxes/exactions may not recoup Taxes/exactions may not recoup

givingsgivings

Balancing Balancing opportunitiesopportunities PlanningPlanning

– Involve public and private interests Involve public and private interests in the planning process in the planning process

– Provide opportunities for education Provide opportunities for education and meaningful involvementand meaningful involvement

– Engage community in dialogue Engage community in dialogue about balancing private and public about balancing private and public interestsinterests

Balancing Balancing opportunitiesopportunities Policy formulationPolicy formulation

– Match policy to public purposeMatch policy to public purpose– Analyze impact of various policy Analyze impact of various policy

scenarios on public and private scenarios on public and private interests interests

– Involve public in selecting Involve public in selecting alternativealternative

Balancing Balancing opportunitiesopportunities Implementation Implementation

– Explain rationale for regulationExplain rationale for regulation– Base regulation on quantifiable Base regulation on quantifiable

measuresmeasures– Illustrate provisions of regulation Illustrate provisions of regulation

with graphics and easy-to-with graphics and easy-to-understand languageunderstand language

– Provide opportunities for educationProvide opportunities for education

Balancing Balancing opportunitiesopportunities Review existing regulationsReview existing regulations

– Review common property rights Review common property rights allegationsallegations

– Explore flexible alternatives to Explore flexible alternatives to regulation (ex. incentives, regulation (ex. incentives, education, performance standards, education, performance standards, etc.)etc.)

– Provide opportunity for appealProvide opportunity for appeal

Conclusions Conclusions

Private property is a flexible and socially Private property is a flexible and socially defined concept.defined concept.

Limitations on individual land interests Limitations on individual land interests often result in benefit to society as a often result in benefit to society as a whole. whole.

Where private limitations go too far they Where private limitations go too far they must be compensated.must be compensated.

Community planning is one approach to Community planning is one approach to balance private and community interests. balance private and community interests.

Thank you!Thank you!

Any questions?Any questions?