A government land grab is going on in the state of Washington, promoted by King County Executive Ron Sims. Mr. Sims, who is currently running for governor, seems to think that the 5th Amendment does not apply to private land ownership.
Private Property May Become Preserved
Residents of King County, Wash., will only be able to build on 10 percent of their land, according to a new law being considered by the county government, which, if enacted, will be the most restrictive land use law in the nation. Known as the 65-10 Rule it calls for landowners to set aside 65 percent of their property and keep it in its natural, vegetative state.
The only vegetative state I see is the one Mr. Sims is in, since he can’t see that this law violates the principles of the 5th Amendment. Just because it is an election year doesn’t mean we just toss out 200 years of legal precedent and history.
If you look at the history of landed property rights in America, then natural, vegetative states, are not considered the favored state of land. In fact, property rights in America are based on a use it or lose it proposition. The land must be used, and ownership maintained, in order for you to keep your land. Property taxes paid on land assert your ownership.
Mr. Sims might also want to note that historically taking away private land and still making people pay tax on it is a great way to start an armed revolt.
Further, the individual is not restricted to the will of the “community” in developing his land, even if there is a more beneficial use that the community may want, the individual is not required to provide that use. If the government wants private land for a public use, then it has to provide payment to the owner.
The rule would be subject to a 5th Amendment “taking” analysis requiring the government to prove several things.
1) What is the compelling government interest?
Supporters and environmentalists say personal property rights do not trump the rights of a larger community to save the eco-system.
Basically the right of the community to have “natural” areas because it would be pretty or good for the environment.
Okay, they think that “community” has a right to save the environment. I suppose that might come under the “Health/Safety/Welfare” section of the 10th Amendment, allowing the State to regulate property.
“We’re trying to keep the rural area a place that isn’t just McMansions and
ball courts, but instead has those natural processes,” said Tim Trohimovich
of the group 1000 Friends of Washington (search), which aims to promote
healthy communities and cities while protecting farmland and forests.
I don’t see that nebulous, hug the planet, statement as being compelling enough to pass a court challenge. The government is going to have to cite some pretty impressive statistics to show that the government needs to keep the land in “a natural state”. I’m pretty sure that there is no EPA Environmental Impact report that is going to back up a 65-10 rule.
The law fails on #1.
2) Is the law narrowly tailored to achieve that interest?
According to the rule, nothing can be built on this land, and if a tree is cut down, for example, it must be replanted. Building anything is out of the question.
That rule is overly broad on its face. “Nothing can be built”, takes away all rights of the land owner. No court would approve that language.
The law would fail on #2.
3) Just compensation is given to the land owner when property is taken by the government
There are no provisions in the law to pay land owners anything. The government stops them from using their property and actually requires that they pay to put back trees that get cut down, or likely, fall down, on their property.
Further there is no way that Kings County could possibly pay for all the private land owners to stop using their land, as it would bankrupt the county government.
The law fails #3
Finally there is another issue that Mr. Sims is forgetting, ex post facto, i.e. zoning laws apply only to property under State authority after the law is passed. This law sounds like it applies to all property in the entire county, not just property bought after the law goes into effect. The law would be an illegal violation of the previously settled legal understanding of the rights of the property owners.
Thus, the law fails on ex post facto as well.
Basically the other County Commissioners could talk to their in house counsel for five seconds and find out that this law is completely without merit.
If they were serious about putting the enviroment first the Commision could set up public land trusts, create green belts in public land areas and give willing private land owners grants to keep portions of their property natural.
Voters ought to take five seconds and note that it is an election year, and vote Mr. Sims out of his commission seat, and never let him near the Governor’s office.
After all he wouldn’t want the Governor’s mansion, it’s a non natural use of the land.