THE RIGHT TO own private property and to use it free from excessive governmental control is under attack in Michigan. Private property is a fundamental right that distinguishes us as a free people. The framers of both our national and state constitutions understood the importance of protecting private property rights. The Fifth Amendment of the Bill of Rights states, "No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Article 1, Section 17, of the Michigan Constitution declares, "No person shall be ... deprived of life, liberty or property, without due process of law," and Article 10, Section 2, holds, "Private property shall not be taken for public use without just compensation. ..."
Despite federal and state constitutional protections against property confiscation, state and local governments have found a subtler way to limit private property rights: regulatory takings. Regulatory takings are an effective way for lawmakers and bureaucrats to pursue their policy goals without having to pay for them.
Such takings are often achieved through laws that restrict the right of landowners to use their property. These laws ostensibly benefit the general public, though there is often disagreement as to the extent or even the existence of the benefit. These benefits must be paid for by someone, and since government officials usually possess more good intentions than they do money, they use regulatory takings to shift the expense to private property owners.
The following are examples:
Wetland Laws: A property owner is denied the use of her property to develop a homesite because she would have to fill wetland. The courts have generally ruled that unless the loss of the use of her property approaches 100 percent, she is entitled to no compensation, even though her property may be virtually useless for its intended purpose. The benefit of protecting wetland may or may not be realized by the general public, but the entire cost of the loss of use of the property is borne by the landowner.
Zoning Ordinances: A small-business man purchases property and opens a coffee shop. The township zoning commission passes an ordinance that prohibits him from placing a sign on his property advertising his business. His ability to operate his business and generate a profit has been seriously harmed. Even though the value of his property is substantially diminished, he receives no compensation and is expected to bear the cost of the supposed aesthetic value realized by local citizens and visitors to the area.
No-Smoking Laws: A family-owned restaurant has been operating successfully for years, providing for the needs of its customers with both smoking and nonsmoking areas. The city council passes a law that bans smoking in all restaurants. The cost of that law is borne by the restaurant owner, who loses some business from customers who smoke. The government is now making business decisions for him, thereby eroding his private property rights.
While it is politically expedient to pass laws that promise benefits for the majority at the expense of individual property owners, our elected officials should be committed to protecting individual freedom by strengthening private property protections.
In the absence of leadership by elected officials, residents of a state may be forced to promote ballot initiatives so voters can decide if they want their private property protected from regulatory takings. For example, voters in both Oregon and Arizona recently approved protections against regulatory takings. Oregon voters overwhelmingly approved a ballot measure that is elegant in its simplicity (see "Measuring Oregon's property rights law"). The measure stipulates that when the government imposes a restriction on the use of private property, it has to pay the landowner for the value lost as a result of that restriction. If the government chooses not to - or cannot afford to - pay the landowner, the restriction does not take effect.
Citizens often are not concerned about protecting private property rights until the government takes an action that affects them directly. By then, however, it may be too late. Michigan property owners should demand that their private property be protected from regulatory takings.