Written by John D’Aloia Jr.
“…. nor shall private property be taken for public use without just compensation.” – – U.S. Constitution, Amendment V. The taking of property by eminent domain for reasons that do not meet the historic definition of “public use” has been much in the news since the Supreme Court handed down its infamous Kelo decision.
Eminent domain is not the only way that private property can be acquired by government. Placing restrictions on the land by law or regulation can also be a taking that warrants just compensation.
The Pottawatomie County Commission has adopted a change to the county’s zoning rules that restrict the use of land that is within the inundation boundaries down stream of watershed dams, that is within the boundaries of the area which would be inundated if the dam was breeched. Two of the stated purposes are to (1) protect life safety and the general public welfare, and (2) to prohibit dwelling units in the inundation area. While existing land uses as of the effective date of the amendment are grandfathered and declared to be conforming, if a person has a residence in an inundation area that is destroyed beyond 51 percent of its real value, by any cause, the home cannot be rebuilt in the inundation area.
Imposing a restriction on property which limits the ability of a landowner to use the land is, for all intents and purposes, a taking of the property. That this is so was recognized in the county commission’s discussions. As reported in the January 31, 2007 Smoke Signal, County Planner John Keller told the commissioners that for dams already in place, the amendment was a compromise on the part of the planning commission and taking the property rights was a necessary measure of that compromise.
A principle that bears on the matter is that when government takes an action “for the general public welfare,” the cost of that action should be borne by all citizens, not just a few. This is the principle behind the Vth Amendment. In this case, the zoning ordinance amendment has taken property rights from everyone who owns property that lies within an inundation area, limiting them as to what they can do in the future with their property. For this, they should not be forced to bear the full cost of what is being done “for the general public welfare.” They should be compensated using general tax revenues, transferring at least part of the cost to all citizens.
The article also stated that the restrictions were needed to “save” the watershed districts from having to upgrade dams, upgrades that would be cost prohibitive. This in itself is a shifting of the financial burden required “for the general public welfare” from all citizens to individual landowners.
The citizens of the State of Oregon recognized the justice involved in these situations when they adopted by referendum Measure 37. Measure 37 requires agencies enforcing a newly imposed land use regulation to either pay just compensation, equal to the reduction of the fair market value caused by the regulation, or to modify or not apply the regulation so the property owner can use their land as allowed at the time they acquired the property. Measure 37 was upheld by the Oregon Supreme Court. (The text of Measure 37 can be read at www.oia.org/SonOf7text.htm.
I know not how many people are affected by the county’s action, or to what extent the value of their land has been lessened, but with 26 watershed dams in the county, and plans for constructing 56 more, I suspect that there are those who will be impacted and will have reason to initiate a request for “just compensation.”