SCOTUS: Legislation Does Not Trump Constitutional Property Rights

Updated: Jan 15, 2020

WASHINGTON, DC: The Fifth Amendment to the United States Constitution requires just compensation when the government takes private property. The Constitution is the supreme law of the land - but did you know that whether the government can take your property now depends on what state you live in?

This is because a growing number of state and federal courts are allowing governments to demand property for public use without just compensation simply because they did so through legislation. Southeastern Legal Foundation, joined by NFIB Small Business Legal Center, the Cato Institute, and the Beacon Center of Tennessee, filed an amicus brief with the U.S. Supreme Court in Cherk v. County of Marin urging the Court to review a California Court of Appeal decision holding that a city or county can force landowners to dedicate private property to public use, without providing just compensation, so long as the government can show that its use of the land will enhance public welfare.

The Supreme Court has held, many times, that the government may only require a permit applicant to dedicate land to a public use when that dedication is necessary to mitigate a harm that the proposed project would cause. In other words there must be an “essential nexus” between the demand and some harm the project would cause and the demand must be “roughly proportional” to the harm.

For more than 20 years, a growing number of lower courts have refused to apply the Supreme Court’s cases when the demand is imposed by legislation rather than through administrative action. In other words, if a city conditions a single permit on requiring that property owner to give the city an easement for a bike path, the lower court applies the essential nexus and rough proportionality test. But, if the city imposes the requirement through a city-wide ordinance, that same lower court only requires the city to show that the ordinance advances some legitimate government objective. This provides local and state governments with a roadmap for evading the Constitution. SLF is hopeful that the Court will grant the property owners’ Petition and ensure that in the future, lower courts stop their unconstitutional acts.

Click here for Supreme Court brief

Click here for Cato Institute case summary article

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