
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, March 1, 1995                   TAG: 9503010052
SECTION: EDITORIAL                    PAGE: A-8   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

DON'T BE TAKEN BY 'TAKINGS'

THE HOUSE of Representatives is preparing to vote on "takings" legislation that supporters sell simplistically as private-property protection. In fact, it would permit huge takings from taxpayers' pocketbooks by property owners whose losses could be merely speculative.

The idea is to compensate property owners if a regulation causes a loss in the value of their property. But the effect would be to force government to pay individuals in order to govern in the public interest.

The takings bill emerged from the House Judiciary Committee, where 6th District Rep. Bob Goodlatte, R-Roanoke, supported it after he was assured that local zoning ordinances plus federal regulations that protect public health and safety would be exempt. These exemptions sound reassuring, but they offer more protection to politicians than to the public.

For example, in the case of regulations that protect wetlands - a major target of the takings movement - it would be difficult, at best, to show that any single landowner's act of filling in and building on wetland would cause flooding downstream. A property owner prevented from doing so by reasonable land-use regulations could claim his land had been devalued and seek compensation from taxpayers.

Yet if many landowners drained what cumulatively amounted to large expanses of wetlands, that would, indeed, cause flooding elsewhere, as it did in the Midwest a couple of years ago. Under a takings law, if the government wanted to prevent such misuse of the land, it might have to pay landowners not to act in a way that would endanger public health and safety.

Further, the bill as written does not even require the owner to realize a loss before he or she is entitled to compensation. The owner need only find an assessor to testify that the property could be worth less if it were sold. Nor does the legislation safeguard against outright fraud by developers who could buy property knowing of land-use restrictions, then claim a loss when they couldn't develop it in an inappropriate way.

Goodlatte contends that, while there are times when the public has an interest in how private land is used, it should be willing to pay the landowner for his loss. Yet the 5th Amendment to the Constitution already protects property rights. Courts have shown no unwillingness to order "takings" compensation when government regulations have gone too far in restricting land use. The courts look, however, to protect property owners and allow for reasonable laws to protect community interests, balancing the two.

Takings advocates are eager to get tax dollars for restrictions that affect even small portions of their property, but there is no corresponding clamor to pay the government when it spends taxpayers' dollars in ways that increase the value of their property - say, by building a reservoir that provides water to previously undevelopable land. Givings, if you will.

Indeed, as Republican Sen. John Chafee points out: "A major purpose behind much of environmental law is to protect private property rights. These laws protect our health, life and property from the adverse consequences of somebody else's pollution and other nuisances imposed on us by our neighbors as they pursue their own interests." Who will compensate citizens for the devaluation of their property by an upstream polluter?

A takings law would make enforcement of some regulations too expensive. If the intent is to get rid of the regulations, as it appears to be, congressmen should vote to get rid of them. Voters will let them know if they agree, and it won't cost taxpayers billions of dollars in the process.

by CNB