The right to own private property unfettered by excessive government control is under attack in Virginia. Private property is a fundamental right that distinguishes us as a free people, The framers of the constitution 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.”
Despite constitutional protection against property confiscation, state and local governments have found a subtle 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 his/her property because there may be standing water. Often the standing water isn’t even on the property but adjacent to it. The courts have generally ruled that unless the loss of property approaches 100 percent, he/she is entitled to no compensation even though the property may be virtually useless for its intended purpose. The benefit of protecting wetlands may or may not be realized by the general public but the entire cost of the loss of use of the property is on the landowner.
Zoning Ordinance: A small business man purchases property and opens a coffee shop. The township zoning commission passes an ordinance that prohibits him from placing a gign 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 the 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.
Environmental Regulation: A landowner purchases two lots in a rural area. One to build his home now and one as an investment for development in 20 years to pay off his mortgage just in time for retirement. There is no public water and sewer infrastructure so he digs a well, installs a septic tank and drain field on the lot where he will live. By the time he’s set to sell the other lot, there is a new regulation that prohibits a septic tank and drain field and in the absence of public infrastructure, he is unable to sell the land for development extinguishing his plan for the pay off his mortgage so he cannot retire. He must also continue to pay taxes on land that is useless to him.
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. Perhaps the only recourse is for citizens of the Commonwealth to pass a measure that 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.
Unfortunately, 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. Virginia property owners should demand that their private property be protected from regulatory takings.