Property Rights Foundation of America®

Two Constitutions
The Fight to Protect the Right to Own Private Property

by Carol W. LaGrasse, from Positions on Property, Vol. 1, No. 2 (PRFA, May 1994)

Article 24 of the Declaration of Rights adopted by the Soviet Congress September 1991 declared:

"Every person enjoys property rights, including the right to own, use and dispose of property, both individually and jointly with other individuals. Ownership rights are guaranteed by law. The inalienable right to own property guarantees personal individual interests and freedoms."(1)

It was widely reported in the fall of 1993 that even after the tumultuous events and growing wariness of change on the part of Russian people, the "right to own Private property" was the part of the new draft constitutions that people were looking over the document for and were excited about.

"Against Russia's history of absolute monarchy and totalitarianism, it is the first charter to seriously proclaim the sanctity of human rights and private property...," according to Serge Schmemann in the New York Times.(2)


Here in the United States, the war to fully regain the right to private property is one of restoration of the Constitution. The courts present the clearest front and victories are being won.

In the case of Dolan v. the Village of Tigard the U.S. Supreme Court in June upheld the right of a private property owner to refuse to submit to a government bureaucracy's unjustified exaction of an environmental tribute beyond its permitting authority, the donation of a greenway and trail, in order to obtain a permit to enlarge a plumbing supply house.

The court stated, "One of the principal purposes of the Taking Clause (in the Fifth Amendment) is 'to bar government from forcing some people to bear burdens which, in all fairness and justice, should be borne by society as a whole.'"(3)

Oregonians in Action, the organization which made it possible for Florence Dolan to pursue the case to the Supreme Court after her husband died, stated, "... one of the most heartening pronouncements by the high court in many years was that it saw no reason property rights 'should be relegated to the status of a poor relation' to other civil rights." (4)

Just a month earlier, the U.S. Supreme Court rejected "flow control" legislation where municipalities laid claim to all waste generated within their jurisdictions. Even though the ruling is based on the Interstate Commerce Clause, the ruling in Carbone v. Town of Clarkstown is important because the court went beyond Carbone's issue of the control of out-of-state waste and declared all municipal flow control illegal.

The Sweethome Communities for a Greater Oregon case could undo the incursions of the Endangered Species Act into private property. The U.S. Court of Appeals in the District of Columbia ruled earlier this year that the 1973 Act does not justify forcing a private property owner to preserve a habitat for an endangered species like the spotted owl. The Court basically said that the law did not mean to define "harm" to include the broad definition which has been in the federal regulations—to include habitat modification or degradation even if it kills wildlife as a result. The Court also said that Congress never intended that private landowners would have to assist in preserving species at great cost to themselves.

In the Loveladies Harbor case the right to private property was also upheld in the U.S. Court of Appeals in June, granting compensation for a regulatory wetlands taking, which was being watched as a potentially important "partial takings" ruling.

Judge Plager wrote, "The question at issue here is, when the Government fulfills its obligation to preserve and protect the public interest, may the cost of obtaining that benefit fall solely upon the affected property owner, or is it to be shared by the community at large."(5)

In a complex ruling that discusses and avoids the "partial taking" question and relies on the Lucas case principle where the case was remanded to the state court to determine whether the owner's interest in the property was negated by preexisting nuisance law, the judge upheld an award to Loveladies of $2,658,000 plus interest for its loss of use of 12.5 acres of wetlands.

The Lucas v. South Carolina Coastal Commission decision of the Supreme Court two years ago, which the environmentalists dared to pooh-pooh, and the liberal press distorted, is further bestowing its blessing of constitutional protection on private property.

In its earlier decision, Nollan v. California Coastal Commission (1987), the Supreme Court had called the "gimmickry" of requiring a direct public access to the ocean in place of the blocking of view of the ocean by Nollan's house "an out-and-out plan of extortion." (6) In the Dolan case, the Court held that the benefit to the public being exacted from the Dolans was a legitimate public interest. But in the Dolan case the Court held that there was no rough "proportionality" of the required dedication and the impact of the proposed development, even though there was some nexus, or relationship, unlike in Nollan.

The Dolan ruling is a directive which must be enforced by property owners against every level of government in the United States to stop the widespread practice of illegal taking of private property as a condition for permit approval.

NOTES:
1. New York Times, Sept. 7, 1991, p. 5.
2. Serge Schmemann, "Why Russians Can't Get Excited About a Constitution," New York Times, Nov. 14, 1993, p. 5E.
3. Dolan v. City of Tigard, U.S Supreme Court, June 24, 1994, p 9 (citing an earlier case).
4. Bill Moshofsky, President Oregonians in Action Legal Center, "The Dolan Case," analysis publ. June, 1994, p 3, citing p. 4 of the decision.
5. Loveladies Harbor v. The United States, U.S. Court of Appeals Fed. Cir., June 15, 1994, p. 3
6. Quoted in Dolan v. City of Tigard, Ibid. p. 12.

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