Private Property Ownership; A. Bellerue

But, the owner has a right to his day in court to insure "just compensation." The Fourteenth Amendment states that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. " This simply extends legal property protection from all of the amendments in the Bill of Rights down to local government protection of private property ownership. But just what is private property owner ship? Property is anything subject to own ership and private relates basically to an individual. Ownership relates to a posses sory interest in a property. This is the right to exert control over the uses of property to the exclusion of others. The Bundle of Rights In real estate, the ownership-rights theory is compared to a bundle of sticks wherein each stick represents a separate rightto use. For example, a property owner can sell his mineral rights usage to one person and Mr. Bellerue is a real property analyst special izing in eminent domain.

lease his surface rights to another. Like wise, an aerial or scenic easement can be granted wherein the underlying rights of use may be retained. But, each time a use is granted away, the bundle of rights shrinks. Government power further reduces the number of sticks in the bundle of rights through taxation, escheat, eminent domain, and police power. In matters of taxation, the federal gov ernment is precluded from direct taxation of real property. This right of taxation is re served to state and local governments. But local encroachment also removes a number of sticks from the ownership bundle. Escheat deals with the state taking over ownership of property if the property owner dies without a will. As previously explained, eminent domain limitations set out in the Fifth and Four teenth Amendments at the very least pro hibit government expropriation without payment for the taking. Police power relates to government reg ulation of property in accordance with that ambiguous term "general welfare." Exam ples of major government intrusions into the right to private property ownership are planning and zoning ordinances; building codes; air and land traffic regulations; and health, safety, and sanitary regulations.

Some of these make sense; others are down right damaging to the right to life, liberty, and property ownership. It is in this latter group of police powers assumed by political government that pri vate property ownership rights are being 20 ignored. More and more sticks have been expropriated from the bundle by regulation or negation of proprietary uses. Such dam aging political action often reduces the owner's property value without just com pensation. The proper term for that is "ex tortion. " If there is any question about the act of protecting and maintaining rights rather than property per se, a statement by U.S. Supreme Court Justice George Sutherland should provide clarification: "It is not the right of property which is protected, but the right to property. Property, per se, has no rights; but the individual, the man, has three great rights, equally sacred from arbitrary intetference: the right to his life, the right to his liberty, the right to his property. . . . The three rights are so bound together as to be essentially one right. To give a man his life but deny him his liberty is to take from him all that makes his life worth living. To give him liberty but to take from him the property which is the fruit and badge of his liberty, is to still leave him a slave."

Legal Plunder The Law Perverted Morality, or proprietary relations be tween people, cannot exist without a basic understanding of the birthrights of every one to life, liberty, and property. Basically, human rights are nothing more than prop erty rights. Currently, throughout the world, nation after nation is in chaos because of trespass upon human property rights. The United States is no exception. In creasingly ,our people are at odds with political governments because of disregard for these rights. Yet, recognition of partic ipation in these trespasses should first be placed at the doorstep of the people who unconscionably take part in this legal plun der. The City of Mesa, Arizona, recently re fused to grant a permit for a residential subdivision located two miles distant from Williams Airport. The basic reason given 21 was that noise from the aircraft would annoy future residents. An aerial easement which would have offset future liability was never suggested.

No mention was made of the fact that the hundreds of existing Capehart Homes on the old Air Force base remain occupied. The emphasis was placed upon the City Planning and Zoning projections calling for industrial usage to surround Mesa's newly-to-be acquired airport. No exceptions were to be made in spite of the fact that there is no present demand for industrial usage in the surrounding agricul tural area. Nor is there any assurance that the federal property will be transferred soon because of Indian claims to some of the property. It may be years before industrial demand sutfaces. The original sticks existing in this owner's bundle of rights that gave him a prior right to use his property for residential subdivi sion have been taken from him by city police power with no just compensation. The only legal use remaining to him now is industrial, the likely market demand for which he may never see in his lifetime.

Through police power of local government regulation, this octogenarian's retirement nest egg has been legally plundered. No longer do local governments use em inent domain's Fifth Amendment where they must compensate the owner for partial loss in property value. Instead, they fall back upon police power through planning and zoning regulation. This permits them to take property without compensation: legal plunder! The bundle of ownership rights to private property keeps shrinking. Frederic Bastiat (1801-1850), a French economist-statesman, brilliantly and pre sciently described this encroachment by government: "The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law became the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish!"

City and county planners and zoners in 22 THE FREEMAN • JANUARY 1995 Arizona have become tyrannical in their unconstitutional takings because judicial de cisions have favored local government tres passes upon private property ownership for nearly half a century. Local officialscontinue to manipulate the legal use of real property for maximum political benefit to themselves, at the ex pense of the owners of private property. Supreme Court Takes Favorable Stand Hopefully, the tide may be changing. After many years of wishy-wash, the U.S. Supreme Court has finally come out with a ruling in favor of private property rights. On June 14, 1994, the importance of individual property ownership was revived in a deci sion in Dolan vs. City of Tigard, Oregon. The court ruled in favor of the petitioner, Florence Dolan, saying that land-use regu lations cannot be based upon the political theory that desirable ends justify any means to restrict the freedom of the property owner. Mrs. Dolan had proposed replace ment of her 9,700 square-foot plumbing supply store with a much larger commercial building on her 1.67 acre lot. But in order to obtain a permit the city of Tigard required her to donate 10 percent of her property to the city for the City Drainage Plan in order "that it be preserved as greenways to min imize flood damage."

While the Oregon courts had ruled against Mrs. Dolan, in favor of the local government taking, the U.S. Supreme Court reversed these rulings. Chief Justice William Rehn quist wrote: "We see no reason why the takings clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation." His reference related to the ques tionable practice of local governments us ing planning and zoning regulation to take private property without "just compensa tion." The decision also stated that the local government did not show a "rough pro portionality" between the effects of the proposed development and the proposed government uncompensated taking. Hence forth the burden of proof will fall directly upon the local government rather than the property owner. There is much more in Rehnquist' s Writ of Certiorari than just items relating to abuses by the City of Tigard. Many of the support ing cases bring to mind comparable land-use regulation abuses throughout Arizona.

Richard A. Epstein was the lawyer who won the Dolan decision. In his book Tak ings, which explores private property and the power ofeminentdomain, he states: "The sole function of police power is to protect individuallibertyand private property against all manifestations of force and fraud." Since government land use regulation is police power and since many Arizona plan ning and zoning enforcements smack of force and fraud, who is to protect individual liberty? Most property owners can't afford to fight city hall and city and county attor neys are more interested in politics. Perhaps this question provides the answer to why the Phoenix Gazette took an editorial position in support of Proposition 300, the state regulatory takings bill wherein the office of the Arizona Attorney General would review a "taking's impact analysis" of all proposed takings. (The proposition was defeated in the November 8 election.) This sounds like a good proposal, pro vided that the Attorney General's Office also reviews questionable local planning and zoning regulations that might be in violation of the Fifth Amendment.

Since the concept of private property ownership provides the basis for morality, maybe Dolan vs. City of Tigard will help us recover some of the sticks in the bundle of rights that we keep losing. It may, in the long run, help to reduce crime-both legal and illegal varieties. D THEFREEMAN IDEASON UBERTY Private Propertyand GovernmentUnder the Constitution by Gary M. Pecquet T he economic concept of private prop erty refers to the rights owners have to the exclusive use and disposal of a physical object. Property is not a table, a chair, or an acre of land. It is the bundle of rights which the owner is entitled to employ those ob jects. The alternative (collectivist) view is that private property consists merely of a legal deed to an object with the use and disposal of the object subject to the whims and mercies of the state. Under this latter view, the state retains ownership and may at any time regulate or even repossess the property it temporarily cedes to individuals.