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TAKINGS
LEGISLATION VERSUS
THE JUDEO-CHRISTIAN LAND ETHIC
THIS LAND IS GOD'S LAND": TAKINGS
LEGISLATION VERSUS by Ann Alexander, Fred Clark, Fred Krueger, and Stan LeQuire
WHERE DO WE GO FROM HERE? What, then, is our responsibility as Christians in confronting the claims of the property rights advocates? Christ has commanded us, in our dealings with the world, to be "as wise as serpents and as harmless as doves" (Matthew 10:16). When we hold up the wisdom of Scripture to the values underlying the more drastic takings compensation proposals, we see that the two directly clash. But the call to be "harmless as doves" requires that, in our fervor to reject misguided legislation, we not turn a deaf ear to any genuinely legitimate claims of hardship or injustice resulting from environmental regulation, and be willing to discuss ways to alleviate any problem that may exist. At bottom, then, being "wise as serpents and harmless as doves" requires that we learn to humbly, prayerfully, and biblically think through for ourselves all of the implications of land use regulation, and not simply swallow whole anyone else's personal biases or self-interested opinions. As we have seen, not everyone who uses biblical language to justify their position is on solid biblical ground. Neither, by the same token, is it necessary to believe every word that comes from the mouth of every secular environmental activist. Having been transformed by the renewing of our minds in Christ (Romans 12:2), we must bring to bear all of Scripture and the power of prayer to seek out and apply the whole of God's truth to these issues, and draw our own conclusions. When we set out to do so, we will frequently find ourselves confronted with claims in the literature of the property rights movement concerning individuals who have suffered greatly as a result of land use regulation. The Wise Use movement has circulated a number of stories about individuals who are said to have lost the value of their land -- sometimes representing an investment of their life savings -- as a result of environmental regulation. Being as "wise as serpents" requires that we consider these claims carefully, and not be taken in immediately by their superficial emotional appeal. In so doing, we may discover that in many cases, there is more to the story than meets the eye. Often, for instance, the "victims" of regulatory "takings" had in fact bought property that they knew full well was likely to be found subject to existing environmental laws -- for instance, environmentally sensitive ocean front or wetland property -- with the hope of earning an economic windfall by getting a court to declare the inevitable denial of permission to develop the property to be a "taking." In many other cases, the entire problem would have been averted had the property owners simply sought the required development permits: if they had done so, they might have found the government willing to negotiate reasonably in the permit application process concerning the effect of environmental laws. Yet other stories turn out to involve wealthy corporations or landowners trying to bail themselves out of bad business deals at taxpayer expense. Indeed, it is for this reason that some of the proposed takings legislation would create opportunities for fraud and unjustified economic windfall at taxpayer expense. A law requiring across-the-board compensation for every reduction in property value would, for instance, allow unscrupulous real estate speculators to purchase land that they knew to harbor endangered species at a low price, and then demand that the government pay them "full market value" for it when their plans to develop it are rejected. Wisdom requires keeping in mind as well that even the legitimate stories -- those reflecting instances in which an environmental regulation reduced property value without fault or knowledge of the owner -- are only half the picture. In seeking justice, we must remember that for all the land use laws that appear to burden a few property owners for the benefit of many, there are as many or more laws that benefit a few property owners at the expense of the many. Landmarking and restrictive zoning laws, for instance, greatly increase the value of neighboring properties. Thus, those who argue that they should be compensated for a decline in the value of their property resulting from, for instance, the application of the Endangered Species Act, generally gloss over the reality that much of the value of their property that exists to begin with is attributable to land use regulations -- for instance, those preventing neighboring property owners from constructing a factory next door. Government regulation for the common good will inevitably have both winners and losers. Our goal, when we assess our legal system in light of Scripture, should be to balance out the wins and losses as justly as possible, in keeping with biblical principles of justice and fairness -- not to pay off selected losers while allowing the winners to keep their economic windfall. By the same token, being as "harmless as doves" requires that we not ignore any genuine injustice that the property rights advocates' stories may bring to light. Some of these stories do reflect a genuine problem of the government having overstepped its legitimate authority, and caused harm to one of its citizens; or simply a failure on the part of lawmakers to craft a regulation in a manner that causes the least possible harm to any individual. In such situations, we must fully support an examination of the environmental law in question to see whether there is a creative way to achieve the law's objectives without causing injustice. We believe that many such creative solutions are out there waiting to be found, and a number of secular environmental groups have come up with proposals for softening the economic impact of environmental and land use regulation on property owners. For instance, it has been suggested that the "surprise" element of property-devaluing regulations can be diminished through proper community planning that puts everyone on notice of land use restrictions before they purchase land or make plans to develop it. It has also been suggested that the right to compensation should vary with income, and with the percentage of net worth represented by the value of the regulated property. That is, large real estate investors can be presumed capable of absorbing a property devaluation, but a retiree who has invested her life savings in a piece of property cannot be. We may conclude as well, in light of the stories of individual hardship, that the Supreme Court's guidelines for the application of the Takings Clause are not perfect. But we ought also to bear in mind that a major advantage they have over the rigid compensation schemes proposed by property rights advocates is that they allow for flexibility in striking the appropriate balance, in varying situations, between the rights of property owners and their responsibility to obey laws that protect and benefit the public. Thus, to the extent that there is truth in any of the anecdotes about harsh economic impacts of environmental law on individuals, the mandate that we be "harmless as doves" requires that we give these stories our attention. However, as we have discussed, the wisdom of Scripture almost certainly requires the conclusion that the extreme takings legislation "cure" to any such problem would be far worse than the disease. Each of us, therefore, must prayerfully think through these issues until we are prepared to confidently answer the claims of the property rights movement with the truth of Scripture -- bearing in mind its call to stewardship and sacrifice, with due regard for its principles of justice. And we must proclaim that truth in the face of all the wealth, power, and misuse of Scripture that would stand against us.
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