Property protections continue to erode

By Vin Suprynowicz
web posted April 10, 2000

Recently it was a refusal by the U.S. Supreme Court to review a lower court decision -- the end result being that the City of San Francisco now gets away with "discouraging" the owners of an apartment house from converting their premises into a tourist hotel by setting an absurdly excessive $600,000 "permit fee."

Unfortunately, the bad news on this front now continues, as the high court on April 3 let stand a Florida ruling that could make it far more difficult for land owners to win compensation when government regulators prevent them from developing their properties.

Up till now, although there was still debate about "partial takings" in which restrictive zoning rules merely reduce the value of a piece of property, it was believed to be settled law that a "regulatory taking" had occurred -- that government must compensate a property owner for the full value of the land -- if regulations are so onerous as to deprive a land owner of any economically viable use of his property.

Regrettably, that's no longer clear. Turning over rocks in search of some newfangled excuse for the government central planners to "plan and zone" property owners into bankruptcy, the lower federal appellate court in the case now in question (Good vs. U.S., 99-881) ruled land owners must also prove they had a "reasonable expectation" of being able to develop the property in the first place.

Because the Supreme Court declined to review the case, that decision is now binding law in three Southern states -- Florida, Alabama and Georgia. In 1973, Lloyd Good Jr. and his mother bought an undeveloped 40-acre tract on Lower Sugarloaf Key in Monroe County, Fla. The tract is mostly mangrove muck.

In 1981, Good sought U.S. Army Corps of Engineers permission to fill or excavate 13 acres for a development of 54 houses and a 48-slip marina, to be known as Sugarloaf Shores. Given that there aren't many other sources of jobs in that particular section of the mosquito coast, locals were pleased. Permission was granted in 1983.

Meanwhile, Good dutifully pursued the necessary state and county approvals, and had received them by mid-1984. But then the mangrove-huggers went to work.

In 1986, the Florida Land and Water Adjudication Commission ordered Monroe County to review the project under a more stringent standard. By 1988, the Lower Keys marsh rabbit had been placed on the federal government's endangered-species list. In 1991, that creature was joined on the list by the silver rice rat -- dear to all lovers of the outdoors and of communicable disease in general.

Guess what? The federal Fish and Wildlife Service ruled Good's planned development would jeopardize both species. The Corps of Engineers duly repealed Good's permit.

Good's lawyers went to court, pointing out that a 1992 Supreme Court decision held land owners are always entitled to compensation when government regulation denies all productive use of their land.

But in a masterpiece of casuistry, the appeals court sniveled that the 1992 decision -- involving similar restrictions on the use of beachfront property in North Carolina -- did not eliminate "the requirement that the landowner have reasonable, investment-backed expectations of developing his land" at the time of purchase. "In view of the regulatory climate that existed when (Good) acquired the subject property, (he) could not have had a reasonable expectation that he would obtain approval to fill 10 acres of wetlands in order to develop the land."

So we're expected to believe that's why Mr. Good spent all those years and all that money trying to obey the law by applying for all those permits ... just to prove it couldn't be done? Besides, if he "should have known it was impossible," how on earth are the appellate judges to explain the fact that by mid-1984 -- before the rat-lovers intervened -- Mr. Good actually had all his required permits?

Nope. He just "should have known," despite the fact that the Endangered Species Act -- the one that stopped him dead in the muck -- hadn't even been made law when the Goods initially bought their land!

What the lower court has here held is that Mr. Good should have looked into his crystal ball in 1973 and and realized that by the 1990s, America's socialists would have found a way to finally achieve their century-old dream, eliminating the inherent right of a private property owner to do anything with his land but pay taxes on it, under the all-purpose guise of "environmental protection."

Of rats.

What will the circuit court rule next, that Indians and blacks have no right to be treated equally under the law, because their parents "had no reasonable expectation" they'd be treated fairly in America, at the time they gave birth?

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. His book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available by dialing 1-800-244-2224; or via web site http://www.thespiritof76.com/wacokillers.html.

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