USSC Faces Challenges On Takings

jillian

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Apr 4, 2006
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The Other Side of Paradise
U.S. Supreme Court faces challenge on takings
Three cases coming up this term could create huge potential liability for governments


Would a ban on assault weapons violate the Fifth Amendment's takings clause? Some members of Congress would like to know, according to one legal scholar who has been asked.

The gun-related question is not before the U.S. Supreme Court, at least not yet. But the scope of the takings clause is this term in three cases, the most potentially significant of which comes up for argument on Jan. 15.

In Koontz v. St. Johns River Water Management District, property rights advocates ask the justices to expand two landmark takings decisions from the Rehnquist Court era to the denial of land use permits when the landowner refuses to accept conditions for approval of the permit.

"Unlike the other two cases, this one has application to every property owner in the country," said Paul Beard of the Pacific Legal Foundation, counsel to Coy Koontz Jr. "Anyone who wants to pull a permit to do anything on their property can potentially be affected."

The Koontz case is "going away the most important takings case the Roberts Court will decide," agreed Douglas Kendall, head of the Constitutional Accountability Center, which has drafted an amicus brief supporting the water district on behalf of the city of New York, the American Planning Association and the National Trust for Historic Preservation.

U.S. Supreme Court faces challenge on takings
 
Some key quotes: "What is demanded of landowner through the condition should be roughly proportional to the projected impact of the development that the condition is supposed to address..."

"Anything that requires a permit can be an occasion for getting money or other benefit for the government without it having to pay for it."

"The federal appellate courts are divided over whether there has to be a relationship between the proposed development and what is being demanded, she said, adding, "That split is not going to get resolved on its own."

First quote makes sense, second sounds like bribery, third is the dilemma. One person's development is another person's mess or eyesore. Would a ban on the howitzer I have ordered for my front yard pass the takings test. Darn, why not? You mean that darn bicycle path will pass the back of my yard, hell, no. So what if these are wetlands, I want my pink with turquoise trim three story house with gun turret right here.

Public places, the commons, are an area that can cause lots of issues, consider use, privacy, animal poop, security, cameras, add development and the issue grows even more complicated. If lands were not off limits one wonders what would we look like? Maybe like lots of route 73 in western New Jersey - kinda messy. Or highways cluttered with the debris of capitalism, poor business decisions and a growing population. Billboards and empty lots.

Back to first question, deadly weapons seem to me to be excluded from a constitutional guarantee IMHO. Or my howitzer would be allowed to scare that would be robber.
 
Two instances which might be way of course but the law is a funny thing. There is the presidence of public domain. Also there has been times when the U.S. government has recalled(?) currency.
 
Reading Mark Kingwell recently I came across a reference to the article below. Interesting piece, a bit off topic but related too.

"....[T]o avoid disaster in our global world is through a frank policy of “mutual coercion, mutually agreed upon.” Under conditions of scarcity, ego-centered impulses naturally impose costs on the group, and hence on all its members." Garrett Hardin

"With Adam Smith's work as a model, I had assumed that the sum of separate ego-serving decisions would be the best possible one for the population as a whole. But presently I discovered that I agreed much more with William Forster Lloyd's conclusions, as given in his Oxford lectures of 1833. Citing what happened to pasturelands left open to many herds of cattle, Lloyd pointed out that, with a resource available to all, the greediest herdsmen would gain—for a while. But mutual ruin was just around the corner. As demand grew in step with population (while supply remained fixed), a time would come when the herdsmen, acting as Smithian individuals, would be trapped by their own competitive impulses. The unmanaged commons would be ruined by overgrazing; competitive individualism would be helpless to prevent the social disaster."

Extensions of "The Tragedy of the Commons"
The Tragedy of the Commons

"It is of no help to us that there is an absolute truth of the matter of things because unfortunately, none of us are in a position to say definitively what that is - although we all think that we are." Stanley Fish
 

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