OREGON ZONING: A COMPENSABLE PARTIAL TAKING? LUCAS, CORBIN

One of the things I like about Constitutional Law is that it's all around you. 

As though sitting under a ripe fruit tree, all you have to do to find an apt example is to reach up and pluck an apple, peach, or orange, and take a bite.

Or just sit there and one will fall into your lap.

Yesterday I wrote about an economics professor who wrote about how the first Thanksgiving was given in thanks for the triumph of unrestricted capitalism over Communism.  The triumph of something he called "freedom of contract" and the freedom to "spend our money as we like," he called it. Labor unions and abusive eminent domain were the two examples he used.  (See "Thanksgiving Nonsense and Propaganda," 11/24/04).

I saw through his argument and noted that he was really arguing for a return to the dreaded Lochner era. 

What he really favored was the demise of labor unions, and the repeal of worker protections such as minimum wage, maximum hours, workers compensation for job-related injuries, worker-safety, and laws against child-labor.

As for his eminent domain argument, I pointed out that this issue is a darling of the conservative right, landowners, basically, who want to be compensated for state and federal laws that, they claim, diminish the value of their property; zoning laws for example.

Providentially, like the apple falling from the tree, today's New York Times brings brings an article here directly in point, written by the felicitously named Felicity Barringer. 

The State of Oregon has one of the strictest land-use planning laws in the country, protecting open space by restricting the right of the owners of that land from building condominium developments, strip malls, office buildings, mega-homes, mini-homes and the like.  Those are restricted to the cities.  The land-owners don't like this.  They can't turn their land into cash or credit.  They're stuck with it, poor dears.  "Land-use planning" is just another term for "theft," to them.

So the property owners are fighting back.

Which is as you might expect.  Land barons have been doing that since before Magna Carta at Runnymede, 1215.  We owe them a lot. We owe them the idea of Due Process of Law, for example.  That's our term for their "the law of the land." 

I quote it, and ours, in the banner headline, above, so we don't forget.

Property owners in Oregon have thus introduced a ballot measure requiring government to compensate  property-owners who can prove that environmental or zoning laws have hurt the value of their investment.

That could get pretty expensive for Oregon in a hurry, because every environmental and zoning law limits the usability of someone's property and costs them money.  Investors in land know going in, when they make their investments, that they are subject to general laws protecting the environment and zoning.

Traditionally these reductions in value for the individual land-owner have not been considered 'takings' within the Compensation Clauses of the 5th (Federal) and 14th (State) Amendments.

Under Lucas v. South Carolina Coastal Commission  505 US 1003 (1992), unless there was a total taking of one's property, or all of its economic value, no compensation was due. The state doing the taking owed the land-owner nothing.  There are two typical ways that a government might "take" property.  The first was the usual one where the property-owner's property was expropriated or "condemned" for a public use.  The second, the one that gave rise to the Lucas case was where there was no condemnation proceeding, but the effect on the landowner was the same. 

In Lucas, the Coastal Commission simply prohibited beachfront owners from using their property, such as a ban on building to protect the shore.  There was a total taking.  Because there was a total deprivation of use, the owner couldn't put up a shack, much less a mansion, there was a total deprivation of fair market value.  That was too much of a taking for even the U.S. Supreme Court to stomach, and so Lucas is authority for the proposition that a regulation which has the effect of a total taking is compensable.  However, the Court clearly said, a partial taking is not.  This struck at least one dissenter as a little much.  Suppose there were a partial "taking" amounting to 99% of the value because of a development restriction?  Wouldn't that count?  Not under Lucas.  Maybe some other case, but that wasn't part of the facts of Lucas where the taking was said to be total.

Partial takings are no takings.  That's the rule of Lucas.  Or one of the ways of expressing the rule of Lucas.  You can describe an idea, or parts of ideas in different ways.  That's why we tell constitutional law student they'll be better off if they try to understand things, not words.

"Think things, not words," is the expression. 

This statement is attributed by Dennis J. Hutchinson, White's biographer, to Prof. Arthur Corbin of Columbia Law School, whose students included Byron R. White, later Justice White, for Contract Law.  According to Hutchinson, Corbin taught students to see "patterns of results, regardless of how the outcomes were explained by the Courts."

I don't think Corbin was saying that courts and judges lie, exactly, but they may overstate and sugar-coat to help controversial doctrines go down a little easier.

Each law writer comes up with different ways of describing the idea that exists in his head according to his understanding.  The students' problem is to get the idea into their heads so they can write and talk about it intelligently, even apply it to a new and seemingly strange fact situation, without leaving out some important component. 

We all have an idea in our heads of what an automobile, truck, or airplane is, as complex as those machines are. 

Your idea probably includes an engine.  Same with legal ideas.  We can stick them into our heads if we can envision them, not forgetting, the defining parts, like the engine that enables them to move, or in the case of airplanes, the wings and tail that enable them to fly.

It is this idea of uncompensable partial takings of Lucas that Oregon property owners are seeking to correct through the ballot process, which is their right. 

This may raise economic, social, and political issues but does not, by itself, seem to present an issue of constitutional law.  But that's only because I haven't thought enough about it.  Stay tuned.

Now I've thought about it a bit.  Just a bit, though, not enough to mean much.  But what I've asked myself is the quintessential Constitutional Law question. 

Would you like to take a scientific wild-ass guess as to what the No. 1 Con-Law question is?

Izzit Constitutional?

Unless you ask whether something, some act or practice, law or rule, is constitutional, you're not even on the path to finding out.  This one puts you on your way towards thinking of an answer, yes or no.

How could a ballot proposition, let's say after it passes, that require government to pay for partial takings be unconstitutional, be unconstitutional?

Off the bat, I have no idea.  But what occurs to me is this. 

Suppose such a rule were to threaten to bankrupt government such that no legislature could pass laws, say, prohibiting landowners or their tenants from from discharging toxic waste into the air, water, or ground, for fear of having to compensate owners for reductions in value. 

Costs that the state tried to make the landowner bear would have to be borne by the state.  The state could try to make it up in increased taxes on certain landowners.  A vicious cycle would ensue, conceivably. 

There's evidence of this happening in Oregon, as I read the NYT article below. 

If challenged, Oregon might argue to the Court that this measure effectively handcuffs states from enacting reform legislation. 

If held constitutional, it would provide too much deference to property interests and not enough to the states as they perform their duty of protecting the general population.  This, it seems, is the underlying point on which the Lucas decision rests.

Oregon would argue that this initiative requiring compensation for partial takings violates the rule of Lucas.  Why didn't I think of that right off the bat?  Because it takes awhile for ideas to percolate through one's brain in a way that different ideas relate to one another in a meaningful way. 

Sometimes we add 2 + 2 and they equal four in a flash, because we're used to seeing 2 + 2, perhaps, and sometimes we go through a more laborious thinking process that takes a few moments longer.  Albert Einstein could probably have told us a thing or two about this.

So maybe there is a constitutional challenge brewing from such an initiative.  We'll see, won't we.

At any rate, this is an example of Con-Law thinking, or how it is done.  Start with Question No. !, Izzit Constitutional, and then start scratching your head.  Sometimes we forget to ask this question, and then we're in trouble, just as though we never looked at Constitutional Law at all.  You've got to ask that question of yourself. 

This is why virtually all Con-Law exams ask a question that amounts to "Discuss whether such-and-such (described in the facts above) is constitutional." 

In real life you have to ask this of yourself when you see a new situation, not yet decided by the Supreme Court, since that is our ultimate arbiter in such questions.

It helps ask this key question first and then take a nap.

It's amazing what your mind can do when it has a chance to regroup.

This advice about taking a nap is not useful when taking Con-Law exams, however.  Sorry.

Conservatives and their legal watchdog groups are watching Oregon's initiative with interest.

You can read the article on the continuation below by clicking on the highlit hotlink. 

And don't forget to subscribe to or buy your copy of the NYT.  I say that because I've borrowed their article and feel I should repay them with an endorsement. 

I think this is "fair use," don't you? 

I certainly hope the Times does.