James W. Pfister
The right to property in our English legal tradition goes back before the Magna Carta of 1215 in the age of feudalism. The famous Article 39 of the Magna Carta states as relevant here: “No free man shall be … disseised … unless by the lawful judgment of his peers, or by the law of the land.” John Locke wrote in his Second Treatise (1689): “The great and chief end therefore, of Men’s uniting into commonwealths, putting themselves under Government, is the Preservation of their Property.”
In our Constitution, the Due Process Clauses of the Fifth and 14th amendments speak of life, liberty and property, and the Fifth Amendment’s “Takings Clause” states: “nor shall private property be taken for public use, without just compensation.” The right to property is perhaps our oldest right and has been upheld from early times in our law.
That right has been vindicated again in two recent unanimous Supreme Court decisions: Sheetz v. County of El Dorado, California (April 12) and Devillier v. Texas (April 16).
In Sheetz, the property owner attempted to obtain a building permit to construct a small, prefabricated home on his land. The county had a General Plan, a legislative enactment that required the developer of land to pay a “traffic impact fee” as a condition of receiving a building permit. The amount of the fee was determined by a “rate schedule,” not by the cost specifically attributable to the property owner’s project.
Sheetz’s fee was determined to be $23,420, based on the General Plan’s rate schedule, not on any actual impact on traffic by this property development.
The key precedents were: Nollan v. California Coastal Comm’n (1987) and Dolan v. City of Tigard (1994), known collectively as the “Nollan/Dolan” test. This test “required the County to make an individualized determination that the fee was necessary to offset traffic congestion attributable to his specific development.”
The lower state courts held that the Nollan/Dolan test did not apply here to the General Plan because it was a legislative enactment, not the product of administrative discretion. The federal Supreme Court disagreed and held that the Takings Clause of the Fifth Amendment applies to all governmental action, whether legislative or administrative.
The Nollan/Dolan test is twofold: 1) the permit condition must have an “essential nexus” to the government’s land-use interest, 2) it must have a “rough proportionality” to the development’s impact on the land-use interest. The purpose of the Nollan/Dolan test is to prevent extortion by the government, by placing a price on a permit with no connection to a legitimate governmental interest.
The court concluded: “This test applies regardless of whether the condition required the landowner to relinquish property or requires her to pay a ‘monetary exaction’ instead of relinquishing the property.” The court here prevents the government from “imposing unconstitutional conditions on land-use permits,” thus preserving the integrity of property.
In Devillier v. Texas, the court also upheld the property right. Governmental action caused floods on the property owner’s land and would be expected to do so in the future. The property owner wanted just compensation for a taking. The court held that the Takings Clause of the Fifth Amendment did not need to be self-executing; the state law here did provide a cause of action for a taking. The Supremacy Clause of the Constitution requires that states provide a cause of action for unconstitutional violations by the state. This should be done on the basis of “good faith.” The court said: “As Texas explained at oral argument, its state-law inverse-condemnation (a taking after-the-fact) cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause.”
These cases uphold the right to own property and that this right will be protected by the Constitution. This right goes back to our earliest law. It is, perhaps, our oldest right. It is the foundation for individualism in our society and, therefore, is a basis for our democracy. With all the arguments over equality, equity, freedom of speech and the right to protest, the property right provides a stability to our society. It also provides a goal for achievement and, as the Declaration of Independence says, “the pursuit of happiness.”
James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.
