The right to control what happens on your property is something
bone-deep for most Americans - a sentiment that often flourishes
alongside such prized patriotic "rights" as low taxes, free speech,
and locally run schools.
Yesterday the United States Supreme Court heard arguments on
whether property bought by an elderly widow for a "dream home" was
wrongly denied a building permit in order to preserve the water
quality of Lake Tahoe in Nevada.
The case is being closely followed, not only because it presents
a sympathetic owner against popular environmental laws - but
because a Supreme Court ruling for the owner could mark a turning
point in the ongoing battle between property-rights advocates and
states. It may also help define what is "just compensation" under
the Constitution for private land "taken" by the state.
The rural West, Nevada in particular, has become a hotbed of
discontent over the control and use of federal, state, and private
Since the 1970s, the high court has given states latitude to
"take" or limit the use of private property - in order to protect
ecosystems, wetlands, special agricultural areas, public parks, or
historic preservation zones.
Whether or not the nine justices will create new rights for
owners was unclear yesterday. However the justices clearly felt
Bernardine Suitum had been wrongly denied access to the courts to
pursue her suit against the state.
"Why not give this poor elderly woman the right to take her case
to court?" asked Justice Sandra Day O'Connor.
In this case, Mrs Suitum was denied a building permit by an
environmental code created by California and Nevada. In
compensation, she was given four "development credits." Such
credits can be sold to other builders who use them to remove other
zoning codes and allow for expansion. The credits are in wide use
in various states and cities that have environmental or historic
areas - as a form of compensation.
Under current law, owners must try and sell or dispose of
property using these means of compensation - before going to court
with a claim or grievance.
However, Suitum's lawyers argued yesterday the development
credits in Tahoe are nearly worthless - and so the point of whether
or not a taking had been made is moot. It had been, they said.
"There is either a value, easily determined, or there is not," said
her lawyer, R.S. Radford. "It is unfair to Mrs. Suitum to test a
market that doesn't exist."
He went on to say that Suitum's right to sue does not begin when
a government official reviews how well or poorly she has dealt with
transfer credits - but with the original government decision to
halt any building on her property. …