Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, February 25, 1994 TAG: 9403040016
SECTION: EDITORIAL PAGE: A11 EDITION: METRO
SOURCE: RICHARD A. EPSTEIN
DATELINE: LENGTH: Medium
Her column ignores my oft-stated conviction that the takings clause was carefully crafted to strike a balance between individual rights and social needs. Unfortunately, Mathews misconstrues my position to hold that the state is obligated to compensate owners in cash whenever its regulations reduce the value of their land. But this characterization overlooks my view that two justifications for uncompensated takings are in principle available to the government in all cases. It can show that regulation is reasonably calculated to prevent the infliction of some present or threatened harm to others; or it can show that the in-kind benefits the regulation provides the landowner offset the losses that it imposes.
In the recent Lucas case (to which she refers, but not by name), South Carolina sought to prohibit the construction of an ordinary single-family home on a beachfront lot worth more than $500,000 with building rights, but worth nothing without them. Mathews insists that it is unconscionable for any landowner to demand compensation for the total wipeout in value if he is left in possession of land he cannot use.
Why? Surely this building prohibition does not offer reasonable protection against any present or threatened harm. The environmentalists argued in Lucas that the building ban prevented flying bits of a house from damaging nearby land. This improbable claim would at most authorize uniform building codes for specific purposes. However, this logic unwisely justifies ripping down without compensation every home along the South Carolina coast, or preventing any new ones from being built.
Mathews then makes the odd suggestion that no compensation is required because Lucas has benefited from the construction of Interstate 95 and the availability of subsidized flood insurance. Her I-95 argument makes at least three errors. First, I-95 was built years ago, and yet the value of Lucas' buildable lot surged nearly 30 percent in the four years after he bought it. Surely this increase in value is attributable to changes in local conditions, not to a pre-existing highway. Second, whatever value Lucas received from the highway he has paid for through federal income and gasoline taxes, like his neighbors. Yet Mathews never explains why he should pay twice while his more fortunate neighbors pay but once.
Most ominous, her argument justifies the outright confiscation of all or part of Lucas' land, for if these supposed highway benefits compensate him for loss of use value, then they also compensate him for the loss of possession. What a royal road to constitutional evasion: Build one public highway and the just compensation clause is nullified forever after.
Mathews' unlikely rendition of the takings clause undermines any constitutional effort to discipline indirectly through a price mechanism the ``arrogant, blundering bureaucracies'' whose misdeeds she acknowledges. Having to pay just compensation rightly forces elected officials to compare the public benefit obtained with the private costs imposed.
Without this principle of take and pay, the state sidesteps these comparisons with extravagant claims of supposed benefits for stopping Lucas from building. Losing the case in fact converted the Coastal Commission into honest brokers. Having paid for Lucas' lot with hard cash, the commission sold it off to the highest bidder, who of course got the same right to build that Lucas had demanded!
Oh, as for subsidies by flood insurance? That's just the kind of government abuse for the wealthy that my positions prohibit. Mathews and I do agree on at least one issue - the further need for open and robust debate on the takings question. Perhaps that debate will be reinvigorated next month when the Supreme Court considers Dolan vs. City of Tigard, its first major takings case since Lucas.
\ Richard A. Epstein is James Parker Hall distinguished service professor of law at the University of Chicago, and author of ``Takings: Private Property and the Power of Eminent Domain.''
\ The Washington Post
by CNB