Sunday, December 13, 2009

Taking Land

High Court Weighs Florida Beach Case : NPR

I caught this report on NPR last week. A number of homeowners down in Florida are claiming that the State has "taken" their land, at least as far as the constitution is concerned, by building a sandbar which added a strip of land between their property boarder and the water's edge. The added strip of land is public, so the property owner's property no longer abuts the water. So no actual property has been lost, rather the value of the property is arguably reduced by the presence of this public strip between the owner and water's edge. Furthermore, the issue was settled by the Florida courts according to Florida State law, against the homeowners. The issue came to the Supreme Court on the unique claim that the Florida Court's decision amounted to an unconstitutional taking of land by the judiciary.

I certainly think the plaintiffs are in the wrong here. No land was taken, that seems like the end of the story. The Government is not required to limiting itself to policies that never reduce the value of anyone's property. Yet, from the reports on NPR and elsewhere, I see no other basis for claiming this as a taking of property. Read the account above on the issues raised and consider an alternative. What if the state had followed a policy that created a strip of land a few feet wide but with a few feet of water between the property owner's property and this new strip of land. All concerns about disturbing the owner's peace would remain, but the owner's property abuts water. How wide would such a strip of land have to be, are the owner's guaranteed that a body of water of some size be located at the edge of their property? The issue, it seems to me is a sort of rights creep. In purchasing the property, the owner's were provided certain stated rights under the purchase contract and state law. Given those rights they assumed that other conditions could be expected to hold, although said conditions were not promised under any guarantee. They now argue that the state must respect not only the guarantees made, but also these additional expected conditions. Supporting this will only lead to yet more extravagant expectations, which in turn will have to be respected, and so on.

But more than that, I see here a failure of imagination on the part of progressives. I have heard other reports of property owners claiming government taking that were hardly much better than this. And we can see, from the report, that the current court is considering this claim with some seriousness. But if this does constitute "taking" property, then the implications are huge. Government cannot take property from a citizen without just compensation, but a private citizen may not do so either. So if the state cannot manage its own property if such management will in any way decrease the value of property owned by a citizen, how can citizen A change his property in any way that will decrease the value of property owned by citizen B? One would think that a decision in favor of the plaintiffs on this case would have serious implications for mountaintop removal, for example.

Even if we are to believe that this is taking only if done by the state (that is to say that if the property under the water were owned by a private citizen who acted exactly as the state did, there would be no claim) consider the implications for global climate change, sea level rising and loss of property. The governments granting permission to the power industry to dump CO2 into the atmosphere would clearly amount to "taking" property from land owners.

These issues, and others I could raise, apply not only to this case, but to a number of others. Yet, I see little evidence that progressives are trying to use these kinds of decisions to advance progressive causes. Our efforts seem limited to ineffectual arguments against the decisions.

There is a large point here too. Very often, it seems to me, conservative arguments do not make any sense, even on their own terms. Yes property rights are important, and the government exists, in no small part, to protect them. But if this kind of action constitutes taking of property, it seems to that such a decision would all but destroy property rights, not affirm them.

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