Key Oregon Case Gives Property-Rights Movement Its Day in (Supreme) Court

Article excerpt

WHEN a government entity takes someone's private property, it must reimburse the owner at a fair rate. This is the essence of the "just compensation" and "due process" clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

But what about when a government agency restricts property use in a way that diminishes its value? Or when a government insists the owner give up part of his property in return for permission to build a house or business?

These questions are central to an Oregon case to be decided by the Supreme Court. And they are the impetus behind a "property-rights movement" sweeping the nation and stirring Congress.

Beyond the Oregon case, the property-rights debate and what some see as the growing power of government - especially in environmental protection - has become one of the nation's hottest political issues. Some half-dozen states have passed laws strengthening property rights, and several dozen more have considered them. So far this year, legislation has been introduced in Florida, Georgia, Iowa, Rhode Island, and Wyoming.

"It is a big issue in all the states," says Tracey Pribble, a policy analyst at the American Legislative Exchange Council. "The banking and insurance industries are starting to get really interested as well."

The Oregon case involves a family-owned plumbing and electrical-supply business in Tigard. Florence Dolan, her late husband, John, and their son, Daniel, wanted to expand their firm on their 1.67-acre lot along a creek.

In return for permission to build, city officials said the Dolans had to dedicate about 10 percent of the lot for a bike path, green way, and improvements to a storm-drainage system.

"The city demanded Mrs. Dolan's land because it wanted it for free to fulfill its long-standing plans for parks and a bike {path}," David Smith, the Dolans' attorney, argued before the high court last week.

"The bike path is a mitigating device that takes cars off the road," countered Tigard attorney Timothy Ramis. "If we can achieve that, then we free up the streets for people going to the hardware store. …