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Russell and Lois Volkema are
among the latest victims of Michigan’s failure to protect the rights of property
owners. A wetlands regulation, passed years after they purchased land in Kent
County, robbed their land of $212,000 in value and partly destroyed their plans
The Michigan Court of Appeals, in a decision last October,
conceded that the regulation interfered with the Volkemas’ investment plans.
However, the court ruled that the couple was not due one penny of compensation
for the "taking" of the property’s value by government regulation. The reason?
The law deprived the Volkemas of only some of their property’s value, not
all of it.
Relief may be on the way. Under consideration in the U. S. Congress is a measure that would require the
federal government to pay owners of private property whenever a federal action
reduces their property values by more than 33 percent. Legislators in 23 states
introduced compensation reform bills in 1995, and at least five states have been
successful at passing laws similar to, and some even more protective than, the
In Michigan, weak but helpful
reforms are getting attention in the legislature. One bill requires that two
departments, the Department of Natural Resources and the Department of
Environmental Quality, conduct impact assessments to recognize potential takings
and evaluate the effect of their actions on property rights. Unfortunately,
this type of "look before you leap" reform makes officials look but does
little to prevent them from leaping at the expense of property owners.
Another bill would require property-rights sensitivity training for the
employees of the DNR and the DEQ — again, a helpful but very modest reform.
These proposals do not
address the flaws in the current system of compensation or provide a substantive
increase in the amount of protection afforded property owners. Their greatest
flaw is in their mandating of assessments and training based on current judicial
takings standards. It is those very standards that cry out for fundamental
Though both the U. S.
Constitution and the Michigan Constitution say that property shall not be taken
for public use "without just compensation," court interpretations of various
laws and regulations have undermined that principle. Owners are usually awarded
compensation in the courts only if all economically viable uses of their
property are destroyed by a governmental action. Even if a regulation decreases
the value of a person’s property by half, for instance, so long as one use or
some value of the total property remains, the owner is left without a remedy.
The Michigan Supreme Court, if it chooses to review the Volkema case, will have
an opportunity to reevaluate this incorrect, but prevailing, interpretation.
The congressional measure
cited above would establish a "trigger point," requiring compensation by the
federal government only when its regulations deprive a citizen of more than 33
percent of his property’s value. But fundamental fairness and justice dictate
that one citizen should not be forced to bear the full costs of a taking that is
supposed to benefit the public as a whole. This goal can truly be achieved,
however, only if the public is forced to compensate property owners for any
reduction, not just those above a certain point. That means that both federal
and state standards should be beefed up.
Florida and North Carolina
have passed compensation legislation with no trigger point. The governments in
these states must compensate for any non negligible reduction in a
property’s value resulting from their actions. This study from the Mackinac
Center for Public Policy argues strongly that the adoption of a similar standard
in Michigan should be a high priority for the legislature.
Opponents will argue that
reform of this sort would be too costly to the public treasury. They want
governments to have freer reign to do what they want without having to worry
about the bills. They see little harm or injustice in foisting tremendous
burdens on a few innocent, property-owning individuals if others in society
derive some benefit. No free society, however, should put the whims of
regulators ahead of the rights of individuals. When those rights are respected
through full compensation for "takings," a better-informed public, like any
consumer, will be able to evaluate the real costs of government actions that are
now hidden in the losses imposed on families like the Volkemas.
Key legislators such as
Representative Ken Sikkema of Grandville have said that "more needs to be done"
on the takings question and have promised "additional measures in the weeks to
come." This opportunity for reform in Michigan is encouraging, but the end goal
of genuine reform must be clear. Property rights form the foundation of
individual liberty and deserve no less.
The Framers understood the importance of
protecting property rights when they drafted the Constitution of the United
States. In the Lockean tradition, the Founders understood that protection of
property constitutes the purpose of any government which recognizes individual
John Locke articulated that, "The great and chief end therefore, of men’s
uniting into commonwealths, and putting themselves under government, is the
preservation of property. To which in the state of nature there are many
things wanting." James Madison observed this essential correlation between property and the
state when he wrote, "Government is instituted to protect property of every
sort.... This being the end of government, that alone is a just
government, which impartially secures to every man, whatever is his
own." To be sure, property rights are essential to the protection of individuals and
are meant to be preserved in our Constitutional framework as found in the
takings clause of the Fifth Amendment of the U.S. Constitution, as well as in
the Michigan Constitution.
The most important protection
lies in Michigan’s takings clause which is found in Article X, Section 2. It
states, "Private property shall not be taken for public use without just
compensation therefor first being made or secured in a manner prescribed by
law." Mirroring the federal takings clause in the U. S. Constitution,
Michigan’s takings clause recognizes that, at times, the proper functioning of
government may collide with individual property rights. It authorizes
intrusions on property for public uses, but also mandates that the
responsibility of compensation lie with the government when collisions occur.
The "just compensation" requirement ensures that public uses will be funded by
the public with the burden falling on the community at large — not
disproportionately on individual property owners.
In an era of burgeoning
governmental regulations, society is moving toward Locke’s criticism of the
state of nature, for once again there are "many things wanting" in the
preservation of property. The sanctity of property rights understood at our
country’s founding is constantly in jeopardy as the weight of the government
falls on individual property owners. Judicial interpretations, over time, have
diluted the status of property while governmental intrusion on it has grown.
More and more, aggrieved property owners are forced to turn to the political
branches for the protections they fail to receive from the judiciary.
This study will
identify the status of takings jurisprudence as it relates to the state of
Michigan, reflect on the detrimental effects of this failed jurisprudence, and
outline appropriate remedies available to the political branches to combat the
assault on private property unleashed by the unchecked growth of federal, state,
and local government. Property is a broad term encompassing qualities of
ownership in everything from land to ideas to liberties. Though this study will primarily focus on takings of real property such as land,
the government has an obligation to assure that property rights of every kind
are safe from governmental intrusion. The enactment of comprehensive property
rights protections is essential to the preservation of the liberty of Michigan’s