"Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own."
Do you know who wrote that? It wasn't Greenhut or Norby. It was James Madison. I haven't checked to see if he's endorsed Prop 90 yet, but if not, Gilliard's got to get that deal done. That'd be one high-profile endorsement. "Walters, Correa, Norby, and James Madison all encourage you, to vote yes on Prop 90..." Maybe on a robo-call and a mailer--or maybe 20 mailers, simultaneously.
But, alas, not all OC'ers are Madisonian in their outlook. The League of Cities, I'm told, is concerned about those oh-so-handy regulatory takings. Regulatory takings are, after all, the Vito Corleone deal of local government: You keep your land, we tell you what to do with it, and we don't have to give you a dime! (Minus the whole head-of-horse-in-bed stuff.) This concern over regulatory takings gave rise to the debate between Sen. Ackerman and Assem. Haynes on the FR yesterday.
In the debate, the Senator wrote, with my highlights:
But there is another and perhaps even more profound provision in this initiative that has not received much attention or discussion.
In the past, I have raised concerns with the effects that the "Protect Our Homes Act" would have on so-called regulatory takings. Regulatory takings are government regulations, which negatively impact the ability of property owners to use their property as they see fit. Under the POHI, property owners would have to be compensated for a wide variety of regulatory actions such as re-zoning if the regulations reduce property values, even though no property is physically acquired.
The Protect Our Homes Initiative states, "damage to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of access to private property, and limitations on the use of private air space."
The POHI could be the basis for setting aside any regulation, no matter how reasonable or beneficial to a community. ...
While this provision would not prohibit government from making rules to protect our communities from objectionable influences, it could make it economically unviable to do so.
Here's the scene:
Big Gov: Johnny, we're not actually, physically taking your property, but we're gonna whack you for a $1 Million loss, that ok with you, Johnny?
Johnny Homeowner-Businessowner (imagine he's originally European): Uh...
BG: What's the matter Johnny, you look pale, you want to sit down a minute? What's that? No, no, we're not going to compensate you for anything, because, we're not physically taking anything--just economics at work here Johnny. Yeah, a million dollars is a substantial economic hit. Sorry 'bout that. Here breath into this bag for a minute, you'll feel better. Good talk Johnny.
Is it that profound that the government should not be able to tell you to use your property as IT sees fit, without just compensation? Isn't the very role of government to protect your freedom to use your property as YOU see fit? I don't see anything in limiting takings--of any sort--that would knock Madison's socks off. And, under what principle should the government be able to substantially harm you for free?
Also, the "reasonableness" of local regulations is not the issue. The issue is who bears the burden of paying for reasonable regulations. If the regulation benefits the community, the community--not one property owner--should pay for the benefit. The role of government cannot be to help many by (substantially economically) harming a few.
Where does the League and the No on 90 folks get this fanciful distinction between a "regulatory" taking and a good ol' fashion, in your face, I-want-it-so-I'll-take-it taking? If I own a plot with a house on it and the government takes it, they must compensate me for my loss. Now, lets say I buy a plot where I legally could build a home and pay accordingly. Then the government changes the rules so that I can't build a home, but I can just own a dirt lot. I surely would not have spent the money for a home-suitable lot as compared to a dirt-only lot. In reality, the government as taken my house--minus the lumber and building costs--just as much as in the first example. They've certainly cost me a lot of money--imagine the value difference if the dirt lot has an ocean view.
Even where more dirt lots are needed--thus making the regulation "reasonable or beneficial"--I still lost something for someone else's benefit. The solution: Pay me for my loss. It's not that complicated. No changing the property rules of the game mid-stream without just compensation. If a community wants to change the something in town, fine. Pay the people that are put out. If the cost to do so is too high, then the citizens have made their choice. Decisions have consequences, including economic ones.
I bring all this up because Mimi Walters, the honorary state chairman for Yes on 90, speaks tomorrow at the OCBC. Each time the proposition is debated, regulatory takings come up. They come up under the guise that, no one has a problem with eminent-domain reform, oh no, there's only a problem with regulatory-taking reform. These debaters fail to note that they are the same thing--especially if it's your property being taken, I mean, regulated.
Madison had this figured out:
That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called. What must be the spirit of legislation where a manufacturer of linen cloth is forbidden to bury his own child in a linen shroud, in order to favour his neighbour who manufactures woolen cloth; where the manufacturer and wearer of woolen cloth are again forbidden the economical use of buttons of that material, in favor of the manufacturer of buttons of other materials!
A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.
Yeah, what he said. And don't forget Madison's closer:
If the Orange County Business Council mean to obtain or deserve the full praise due to wise and just Business Councils, they will equally respect the rights of property, and the property in rights: they will rival the Business Councils that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other Business Councils.
Alright, I'll give Adam "Fighting for the cause of liberty and getting paid well for the work" Probolsky his soapbox back now. I'm done. Hope to see you all tomorrow at the OCBC.
directly exercise legislative and executive power themselves. If San Juan's 18,000 voters are competent to make informed land use planning decisions regarding open space, surely they can collectively manage the public works department and the parks department.
Steve Greenhut 
This just came over the transom from the 
