To redress the lack of judicial
protection against the expansion of governmental power, a surge of property
rights bills have emerged in state legislatures throughout the country in recent
years. Fueled by grass-roots property rights organizations,
21 states have enacted some form of enhanced property rights protective
legislation, and hundreds of such bills have been introduced [See Table 1]. Michigan, lately a leader in state reform, is oddly one of the last states
to begin addressing the need for greater property rights protections, and its
initiatives to date have been incomplete.
It must be noted that non
judicial remedies should not be necessary. Illegitimate takings should be
barred through a correct interpretation of state constitutions and the United
States Constitution in the judicial review power of the courts. The text of the
Michigan Constitution’s takings clause and its intent, correctly interpreted,
incorporates all of the protections that could be repeated through non judicial
remedies. Inappropriate interpretations, however, have forced legislatures to
begin to clarify and underscore the limitations inherent in the takings clause.
Legislation, though, runs the
risk of indicating that the protections afforded by the original clause are not
as broad as they truly were intended to be. Constitutional protections are
difficult to alter and stand as supreme statements of law. Ensuring that
protections are understood to lie in the constitution, as opposed to statutes,
prevents such protections from existing only at the mercy of the legislative
mood. Judicial interpretations, however, cannot be mandated and the only means
for correcting judicial errors lies in our ability to choose judges in the
future who respect the constitutional intent.
Though statutory clarifications
can be altered more easily, they do provide an important remedy for property
owners who now find their rights unprotected in the courts. The lack of respect
for the original constitutional takings protections necessitates a turn to
The types of initiatives being pursued in the states range
in their nature and level of protection. Several categories can be isolated to
organize these efforts; but only an approach which incorporates each of these
categories of protection will provide a comprehensive defense against
governmental infringements on the property rights of citizens.
Some efforts deal with special problems such as rights to
forest or farm, mineral or water rights, landfills, submerged land, coastal
property, rent control, or attempt to limit the application of specific
statutes. Often these specialized efforts are more politically feasible than a
comprehensive property rights bill. Most of the concerns addressed in such
legislation, however, can be swept up in a more general and comprehensive policy
dealing with the taking of property. To reach a more complete understanding of
takings implications from actions by the government, some states have chosen to
provide mechanisms studying the takings issue and measures for addressing
governmental encroachments on private property.
Some states have also attempted to
codify recent United States Supreme Court decisions such as Dolan v. City of
Tigard  and Nollan v. California Coastal
in their legislation. Each of these recent cases has limited the state’s power
to condition the issuance of use permits on the exaction or designation of
private property rights. Legislation targeted specifically at permit issuance
procedures has passed in Arizona and Utah,
while many of the compensation bills also encompass the issue of takings in
One common effort at more
broad-based reform has been to institute a planning procedure in relation to
private property. Often referred to as “look before you leap” legislation,
these efforts generally require government officials to assess and analyze the
impact that a law or regulation is likely to have on private property within
their jurisdiction, or to mandate specific procedures to be followed when
condemning property under the power of eminent domain. It is believed that
forcing officials to recognize the intrusiveness of their actions, by weighing a
value formerly ignored in their determinations on the appropriateness of a law
or regulation, may cause them to think twice about the need for the policy.
Planning controls also require officials to narrowly tailor their actions in
relation to private property such that the least intrusive means for achieving
the government’s goal are employed. When effective alternatives are present
that have less of an impact on property rights, planning laws command those
alternative actions to be implemented in place of the originally proposed
Planning requirements create a more stringent system of accountability. Most
require notice be given to property owners likely to be affected by a
governmental action. Moreover, the public can access the findings of a takings
impact assessment and judge the legitimacy of their governmental
representative’s policies. Ignoring the effects on property can no longer be a
shield against public criticism when strong planning laws are in place.
Planning bills have formed the core of most property rights reform efforts.
In fact, the Michigan legislature’s only concentrated effort to date for
reforming takings law, House Bill 4433, falls into this category. Many states
have implemented targeted planning efforts which affect only certain
regulations, such as those affecting wetlands. Similarly, Michigan’s bill
requires only that assessments be done within the Department of Natural
Resources and the Department of Environmental Quality. The most intrusive
measures on private property are doubtlessly those resulting from environmental
regulations. Regulations from other agencies, legislative enactments, and
actions of municipalities, however, also have a tendency to result in takings.
These governmental entities should be required to assess their actions in
relation to property rights.
Furthermore, most state
legislatures that have addressed the takings assessment issue have included
standards for analysis within their bills. The Michigan legislature, on the
other hand, requires the attorney general to formulate such standards himself.
Specific requirements are more preferable, for they do not depend on the
dispositions of the attorney general and cannot change as easily when a new
attorney general is elected.
Another shortcoming of many
planning efforts, Michigan’s included, is their reliance on the definitions
afforded “takings” by the Michigan Supreme Court and the United States Supreme
Court. Remedies which afford no greater protection than the courts are not much
remedy at all. Though they do ease the process of filing suit to gain
compensation for governmental actions that are currently considered “takings,”
planning measures often are merely restatements of the existing law.
To address this concern, another category of property rights legislation involves
reforming the definitional scope of a compensable taking.
These efforts address the judicial void in relation to permit conditions,
partial takings, temporary takings, and/or other actions which result in a
restriction on the use of property. By expanding the definition of a “taking,”
these laws provide property owners with a cause of action against governmental
actions which render portions of property useless or reduce the value of their
property. This cause of action kicks in at a certain “trigger point,” a threshold
percentage of reduced property value. Obviously, those acts with the lowest
“trigger points” are the most protective.
Two states, Florida and North Carolina, have passed compensation bills with no
Any “non negligible” reduction in value of property caused by a governmental
action shall be compensated at the fair market value of the loss. Inherent in
this is a redefinition of taking to mean any non negligible reduction in a
property’s value, and thereby, it allows for compensation for regulatory
takings, or inverse condemnation.
Texas has passed a planning
and compensation law which entitles owners to compensation when a governmental
action “is the producing cause of a reduction of at least 25 percent in the
market value of the affected private real property.”
Mississippi’s law compensates owners when the market value of their property is
reduced by 40 percent or more,
and Louisiana compensates for agricultural land decreased in value by 20 percent
or more and also requires planning to occur in relation to impacts on
Many states have been successful at combining several different categories of reform to
increase the amount of protection afforded private property owners within their
state. The Michigan legislature can learn from these examples of legislation
with varying degrees of protection when defining its goals for reform. It is
increasingly clear that states have a responsibility to respond to the failures
of their judiciaries and to stabilize the rights of private property owners
within their jurisdiction. Given the impetus for takings reform, additional
layers of protection are sure to be added in the years to come.