Property Rights Foundation of America®
Founded 1994


One Vermonter's 21 Year Courtroom Odyssey
by John McClaughry


For twenty-one years the State of Vermont, the Federal government, and the city of Burlington have put Paul Preseault through a judicial wringer. At issue was the ownership of the abandoned railbed of the Rutland Railway, which runs through Preseault's back yard on Burlington's northern lakefront.

The original deed for the right of way provided that if the railway were abandoned, the land would revert to the adjacent landowners from whom it was taken. Burlington, in the person of Mayor Bernard Sanders and economic development director Peter Clavelle, demanded that the right of way be kept open to the public as a bike path.

At the beginning, Preseault was willing to make a deal with the city to sell his rights to the old railbed. In fact, the agreement was reached and documents were being drafted. Then Rep. Howard Dean MD pushed a bill through the legislature that simply declared the abandoned railbed to be the property of the city of Burlington. Since the legislature had declared the city to be the owner, the city walked out of the deal with Preseault.

Preseault fought back. Over the ensuing years he made appearances before the Interstate Commerce Commission, the U.S. Appeals Court (three times), U.S. Court of Claims (twice), and the U.S. Supreme Court. The final result was that the City of Burlington was told to pay compensation ($234,000) to Preseault for taking his property rights for public use. The question of attorney's fees payable to Preseault - which dwarf the $234,000 - is still in play.

It has so far taken a victimized landowner 21 years to get a final determination in his case. Even though he prevailed, it may still take as many as five additional years for him to get the final payment.

The Preseault case illustrates how government lawyers will employ every trick in the legal book to get something for nothing at the expense of a private citizen. Their argument in taking cases typically goes, "The government's interest always takes precedence over any private interest. Your case is not ripe for adjudication because you haven't exhausted all your remedies. If you applied once, twice or three times for a permit to develop, and were refused, you still might succeed after ten more tries."

"If you could still get any use at all out of the property after the regulation, we don't owe you anything. If the land in question is only a portion of a larger parcel, and you can develop the other portion, we don't owe you anything. If your land was regulated when you became the owner, you and your heirs forever forfeit your right to claim a regulatory taking, no matter what the regulators inflict on you later on. You can spend 21 years fighting us in court, and even grow old and die poor, but we — the government — are immortal. We have as much money as we could possibly want to invade your rights, since it isn't our money (it comes from taxpayers.)"

Last month the U.S. Supreme Court settled two of the above arguments in a landowner's favor. In Palazzolo v. Rhode Island the Court held that if the state told Palazzolo he couldn't put fill in a wetland, that was a final regulatory taking, and he was entitled to demand compensation. The Court also held that although Palazzolo acquired the property knowing it was subject to some kind of regulation, that fact doesn't allow the regulators to run wild thereafter on the theory that the landowner had nobody to blame but himself for acquiring regulated land.

Those are two steps in the right direction. So were the Court's earlier decisions that the government can not require as a permit condition for expanding a beachfront home that the homeowner allow his front yard to be used as a public thoroughfare (Nollan), and that a regulation which made a parcel totally worthless requires compensation (Lucas).

The final step would be for Congress and state legislatures to adopt the principle that a land use regulation — other than a nuisance law — that wipes out more than some specified percentage (at least 50%) of the fair market value of a piece of land, is on its face a taking of property that requires just compensation.

The right to own, peaceably use, exchange, bequeath, and exclude others from land is a right that goes back far in Anglo-American legal history. It is enshrined in the Fifth and Fourteenth amendments to the U.S. Constitution and Articles First and Second of Vermont's Constitution. If public officials had taken their oath to support our constitutions seriously, the Preseault railbed case could have been settled in a few months, and it would have cost the city of Burlington a tiny fraction of what the taxpayers had to pay to support the three levels of government lawyers in 21 years of courtroom conflict.

Paul Preseault's vindication after 21 years of litigation is a happy outcome for him, but the outcome should be a mighty reproach to the government officials who ran up a huge taxpayer-paid legal bill trying to deprive one Vermonter of his rights.

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John McClaughry is President of the Ethan Allen Institute. A retired Vermont State Senator, he is a member of the PRFA National Property Rights Advisory Board.
(www.ethanallen.org)

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