Constitutional-Literacy-16

=**Section 16: Property Rights**=

Francis Dolan's family owned plumbing and electrical stores in Oregon. They wanted to expand the store due to good business - both the store and the parking lot. They had to get zoning permission in order to do so. The city required her to donate a portion of her land for a bike path to relieve traffic congestion. This makes sense to relieve traffic congestion since it's common to go get a hot water tank or plumbing supplies on a bike (notice the sarcasm). That's what the city wanted to do. The store that Dolan was looking to expand was in a typical downtown neighborhood - not bikes - in downtown Tigard, Oregon. She had to give the land, not be paid for it, for a bike path, which is a common tactic of local governments. Mrs. Dolan refused to cave in and went through the courts to the Supreme Court, which ruled that the city's demand to give up the land for nothing was unconstitutional since it was taking and the Takings Clause of the 5th amendment reads "nor shall private property be taken for public use without just compensation." If there is ever a dispute over what is "just compensation" between the owner and the government, a judge and/or jury would decide. It was a 5-4 vote that rule Mrs. Dolan's property rights were violated since she was not compensated for the land. Zoning is okay if the condition imposed "must be roughly proportional in nature and extent to the impact of the proposed development." Similarly, Patrick Henry College in Virginia had to put in a small turning lane off the main highway so that people could safely turn into the college. This had to be put in, but would not be compensated, but is okay because the tax payers would have had to be the ones paying the compensation to the college. This meets the condition above.


 * Comprehension Question: What amendment controls the government's ability to take private property? What are the conditions placed on this power?**


 * Comprehension Question: How is the just value of property determined if there is a dispute between the owner and the government?**


 * Comprehension Question: In the two circumstances above, why was one taking of the land okay but the other not?**

Property rights have gone through the courts. In United States v. Causby 1946 military planes on their final approach to land were flying low over a chicken farm, which hurt the business. Did the farmer have a right to compensation for the land? Yes, but not every flight over land has this claim - only if a "direct and immediate interference with the enjoyment of the land," which would have been the case with the chicken farm.

In Lucas v. South Carolina Coastal Council 1992 the Supreme Court had to look into beachfront property rights. Lucas bought two beachfront lots and wanted to build houses similar to others around his lots. The South Carolina legislature had passed a law that prohibited him from building anything on those lots. He filed suits for just compensation of his property. The government (of South Carolina) said no because his intentions were harmful to the environment. The Supreme Court overruled the state saying that "when the owner of real property (land) has been called upon to sacrifice all economically beneficial uses in the name of the common good, he has suffered a taking." South Carolina paid Mr. Lucas and then the state sold the land to private developers. Today, homes sit on those lots!


 * Comprehension Question: What did the Lucas case rule and was this a good or bad ruling in your opinion? Why?**

There are historic preservation laws that require owners to maintain their structures in essentially original condition if their structure is of historic significance. In an important case dealing with Grand Central Station in New York City, owners didn't want to tear it down, but wanted to build a skyscraper on top. The city refused to allow this and used the historic preservation laws as justification. It went to the Supreme Court in Penn Central Transportation v. New York 1977 and the court ruled that the owners weren't violated since they could still have economic returns without the skyscraper.

In another case, called the Kelo case, the court had to look at a key phrase in the Takings Clause that said "for public use." In Kelo v. City of New London 2005, the city of New London, CT took private land and sold it to a private developer in hopes that the economic development would help the city economically. So, the city took private land and sold it to a developer hoping to increase tax revenue for the city. Kelo and others whose property got seized sued for violation of the 5th amendment's Takings Clause. The Supreme Court ruled in a 5-4 decision that this did not violate property rights - the city was able to do this saying it wasn't to benefit one group, but rather the whole city. This case was very damaging to property rights. The developer got the city to use eminent domain when not everyone would sell to the developer. The city took the land and then gave it to the developer. It wasn't REALLY for public use. It went from one private hand to another. The city argued that it was for the public benefit of more tax revenue. The city didn't argue the public use part. Basically, the Supreme Court rewrote the amendment by allowing public benefit rather than public use. Public use is to mean government use. Another case in California that followed the Kelo case was when a city refused zoning for a church to be built so that a Costco could be built. Churches don't pay property tax, Costco does. There was very negative reaction to the Kelo case. Think about the power this gives local governments over individual property rights.


 * Comprehension Question: In what way was the Kelo v. City of New London such a big departure from prior cases?**

John Adams said "The moment the idea is admitted into society that property is not as sacred as the law of God and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."

Watch the clip below put out in 2010 (5 years after Kelo) by the Institute For Justice and how grassroots movement reacted and fought against government abuse of eminent domain. media type="youtube" key="qSxru-qxuL4" height="315" width="560"


 * Comprehension Question: What did the reaction to Kelo demonstrate?**


 * Discussion Question: The founding generation placed a very high value on property rights (ranked up there with life and liberty). The current Supreme Court doctrines and government practices place property at a much lower level of protection than other rights. Why DO YOU THINK this has happened? What do you think can be done in response?**

**Overall: Summarize the main idea of this section and why it's important.**

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