'Takings' bill likely to shake up legislative session

The Greeville News - February 4, 2002

By Bob Montgomery
ENVIRONMENTAL WRITER
bmontgom@greenvillenews.com

Property rights is a controversial and hotly debated feud that dates back to the days when the nation's forefathers were shaping the Constitution.

And now "takings" legislation, which would require paying property owners for devaluation caused by government action, is expected to be among the most hotly debated topics in the state Legislature this year.

Efforts have been made in recent years to strengthen the property rights clause of the Fifth Amendment -- to compensate property owners who believe they have lost value due to government zoning restrictions.

Groups representing counties and municipalities said the bill would create a chilling effect by effectively ending all zoning and land-use planning.

On one side are property-rights advocates, including some of the state's largest timber companies and real estate developers, who have pushed for legislation making it easier for property owners to argue that certain government land-use rules amount to unconstitutional "takings" of their property.

Opponents say if a "takings" bill passes, government's hands would be tied when it comes to zoning changes and that takings compensation could bankrupt a governmental body.

Proponents say a simple system involving an administrative law judge would compensate affected property owners without costing an arm and a leg.

Takings bill proposed
State Sen. Glenn McConnell, R-Charleston, has introduced a takings bill designed to protect average property owners from governmental zoning changes that affect their property values.

For example, if the owner of a farm planned to build 60 homes as it was currently zoned, and the county rezoned it to allow for only 10 homes, the landowner would be compensated for the difference he would have made had it not been rezoned.

Under McConnell's plan, an administrative law judge would rule whether a taking has occurred and how much compensation is due.

McConnell said with so much time and energy being spent on the reapportionment issue, there might not be a vote on takings legislation this year.

A task force is holding meetings throughout the state to determine the exact language of the bill, he said.

"The devil's in the details," McConnell said. "We need to have language that protects the landowner against takings, but preserves zoning, historic preservation, planning and environmental protection. And that's a tall order."

Bob Scott, president of the South Carolina Forestry Association, said his group supports the bill because it gives property owners a quick and less expensive way to deal with takings and it makes government examine the impact of regulation changes.

"It will cause governments to be doubly careful and look before they leap," Scott said.

Nationwide issue
The property rights issue is being fought nationwide. More than half the states have some sort of property rights laws.

In California, a 723-acre tract of arid land that was plowed for farming was deemed to be the home of three endangered species.

Federal agents raided the farm and charges were filed for violating the 1973 Endangered Species Act.

The farmer agreed to seek a permit and donate $5,000 to a local wildlife conservation center.

From 1990 to 1993, there were 104 federal court decisions on the takings issue, according to Congressional Research Service.

In one case, the Supreme Court backed a beachfront property owner's claim in 1992 in South Carolina that he was blocked from building on his lot under an erosion-control plan, constituting a taking. The landowner was granted compensation.

The case made South Carolina a national property-rights battlefield.

Locally, states with laws to protect property rights include Florida, North Carolina, Louisiana and Tennessee. And Congress has debated the issue, with Republicans butting heads with Democrats who oppose such legislation.

Gerald Kayden of the Harvard Design School said no states have "givings" laws that address positive economic effects from government actions.

"If we're serious, we should do it on both sides," Kayden said.

Harvey Jacobs of the University of Wisconsin at Madison said most of the laws around the country are relatively weak. Only a half-dozen states have laws that actually provide compensation, he said.

'Terrifying bill'
Brad Wyche of Upstate Forever, a Greenville area group that promotes sensible growth, called it "a terrifying bill."

"It would impose a staggering cost on taxpayers, cripple community planning efforts and severely undermine our state's environmental protection programs.

"If for no other reason, the bill should be defeated because of its fiscal impact."

Wyche said the U.S. Constitution already addresses takings in the Fifth Amendment, which says citizens should not "be deprived of life, liberty or property, without due process of law, nor shall private property be taken for public use, without just compensation."

McConnell said, "the bill we drafted is more specific than the Fifth Amendment. The proof is in the pudding."

Jimmy Chandler, legislative chairman of the South Carolina Sierra Club, said takings legislation would result in "a boondoggle for lawyers."

"It's destined to greet more litigation than ever before. Every property restriction is going to be alleged to be a taking."

Dell Isham, executive director of the South Carolina Sierra Club, said the bill would prove too costly. "And this whole concept is disrespectful of local control," Isham said.

Gary Cannon of the Municipal Association of South Carolina said he opposes McConnell's bill because it would tie local government's hands when it comes to zoning.

"It would create major problems with zoning," Cannon said. "You would see a chilling effect on zoning ordinances, particularly where high growth is occurring. It could be financially disastrous to local governments."

Nancy Vinson of the South Carolina Coastal Conservation League said she supports having an administrative law judge determine when a taking occurs, but the state should be careful in what it defines as a taking.

"Just imagine a hog factory farm would say you're taking my property rights," Vinson said. 'Chilling effect'
Cunningham said he agrees that the Constitution already protects the taking of private property.

"For the state to introduce a layer of legislation above that is, in my opinion, to create a chilling effect on proactive resource management or land conservation activity," Cunningham said.

But Andy Moriss of the Political Economy Research Center in Washington, a group that endorses free-market solutions to environmental problems, said takings legislation holds government accountable for its actions.

"When government takes away rights to compensate property owners, it will mean government has to think about the costs of their actions," Moriss said. "The Fifth Amendment only provides some protection."

Charleston attorney Neil Robinson, a member of the South Carolina Tourism Council, a group of developers spearheading the property-rights push, said he believes McConnell's bill will provide swift relief at a minimal cost.

"I think it's time for the pendulum to swing toward the middle and the playing field leveled," Robinson said.

"In South Carolina, land is where our wealth has come from. When you restrict that, you take the only thing a family has of value."

John Cone of the South Carolina Home Builders Association said he believes McConnell's bill will pass once the interests of all sides are protected.

"This is not intended in any way to take away zoning rights the cities and counties have," Cone said. "That simply is not the intention."

Bob Montgomery covers the environment and can be reached at 298-4295.