Guest Opinion: Feds only want to borrow your property rights for awhile

America's founders were careful to include a provision in the Constitution requiring the government to compensate owners when it takes their private property.

Ever since then, courts and legal scholars have labored to carve out exceptions to this rule.

The latest exception to the rule that "takings" must be compensated get high marks for creativity. In a case involving a governmental ban on any beneficial use of private land, the Ninth Circuit Court of Appeals has ruled that compensation is not required because doing so would amount to "temporal segmentation" of the property.

How's that again?

The case in question, Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency, (Case No. 99-15641, June 15), involves property owners near Lake Tahoe who have the misfortune to fall within the jurisdiction of the Tahoe Regional Planning Agency.

This is the same outfit that got a reputation a few years ago for refusing to allow a wheelchair-bound 83-year-old blind widow to build her dreamed-of retirement home on the last undeveloped lot in a fully built out subdivision. It didn't want to compensate her, either. Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997).

Here, TRPA slapped a prohibition on virtually all private construction in the general vicinity of the lake for a 20-month period, which was extended for another three years by a court order.

Affected property owners sued, claiming they were entitled to compensation for the loss of the use of their land for more than 4-1/2 years.

This might seem like a slam dunk for the owners. After all, the U.S. Supreme Court has previously held that a denial of all beneficial use of property "categorically" violates the Fifth Amendment and always requires compensation. Lucas v. South Carolina Coastal Council 505 U.S. 1003 (1992).

The high court has also said that temporary "takings" are no different from permanent ones in this respect. Owners must be compensated from the time the government first deprives them of the use of their property, to the time the offending regulations are dropped. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).

But things are different in the Ninth Circuit.

Judge Stephen Reinhardt, who wrote the Tahoe opinion, began with a different line of Supreme Court cases, those that say compensation is not required unless the government takes all of your property.

These cases, which began with Penn Central Transportation Co. v. City of New York, 483 U.S. 104 (1979), are normally cited to get the government off the hook when it has only deprived an owner of the use of, say, 95 acres out of a 100-acre parcel.

It turns out that the same principle, according to Judge Reinhardt, should apply to the "temporal dimension" of property.

Surely no one can deny that real estate persists through time - theoretically to infinity. If the government says you can't do anything with your land between, say 10:30 a.m. and noon on Aug. 17, 2000, it may have deprived you of all beneficial use of your property in the spatial dimension, but it has only taken a tiny sliver of your ownership interest, measured temporarily.

Therefore, according to Judge Reinhardt's reasoning, such a deprivation would not be a taking requiring compensation under Penn Central.

And if you buy that, it shouldn't be hard to see that the 57-month ban involved in the Tahoe case didn't require compensation, either. After all, what's a 4-1/2 year slice out of a "temporary dimension" that extends from the Ice Age to the age of time?

This theory hooks up an interesting way with a recent law review article by Professor Raymond Coleta of McGeorge School of Law. Professor Coletta's insight is that your property extends "from the depths of the earth to the heights of the sky."

Therefore, if the government should happen to deprive you of the use of that tiny slice of your property that happens to correspond to the surface of the earth, you have lost nothing requiring compensation. At most, you would suffer an insignificant diminution of the "vertical dimension" of your property.

But together, Judge Reinhardt and Professor Coletta may have finally resolved the thorny issue of "takings" liability once and for all. Out of deference to the founders, we must recognize that the Fifth Amendment requires just compensation whenever the government takes your property.

Just not here.

And not now.

R.S. Radford is director of the Program for Judicial Awareness at Pacific Legal Foundation. He successfully represented the property owner in Suitum v. Tahoe Regional Planning Agency.