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Monday, September 06, 1999
Copyright © Las Vegas Review-Journal
Not a taking?
Federal court deals blow to property rights.
A federal appeals court has decided that the takings clause of the Fifth Amendment doesn't really mean what it says.
The U.S. Court of Appeals for the Federal Circuit last week threw out the case of a Florida developer who sought government compensation when various regulations prevented him from developing his land.
Lloyd A. Good Jr. had sought for 17 years to develop 40 acres in the Florida Keys. In the 1980s, he obtained local and state permits, but he was stymied by the presence of two endangered species on the property. Later he ran into problems because much of the property had been designated as wetlands.
In 1990, the U.S. Army Corps of Engineers said it would give Mr. Good a permit to build on the wetlands if he agreed to tailor the project to protect the endangered species. Mr. Good refused and sued.
The court ruled that when Mr. Good bought the land in 1973 he was aware there were certain restrictions on it. Mr. Good "lacked a reasonable, investment-backed expectation that he would obtain the regulatory approval needed to develop the property," the court held.
The takings clause doesn't say anything about having a "reasonable expectation" about obtaining "regulatory approval." Instead, it holds that private property shall not "be taken for public use without just compensation." While Mr. Good's land was not taken in the sense that a city might seize land for a road project, it was nevertheless rendered virtually worthless by the actions of the federal government.
"Unless you got the property from the King of England you probably can never prove a reasonable investment" because of some restrictive law or regulation, Mr. Good's attorney told The Associated Press. "It's a devastating ruling for private property owners."
The Supreme Court in recent years has recognized that the Fifth Amendment limits the government's ability to impose sweeping land-use regulations without making whole the property owners affected. Mr. Good ought to appeal and hope the nation's highest court accepts the case.
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