APPENDIX A 



Due Process and the "Taking Issue" 



Government regulation of development raises a powerful myth, that 

 suggests the Fifth Amendment to the United States Constitution-- 

 "...nor shall private property be taken" from regulation which restricts 

 use of property. Likewise, there is a spreading fear that government at 

 all levels can take private land for public use without paying compensa- 

 tion through zoning and environmental regulations. Though unfounded, the 

 fear is fostered by the exceedingly complex ownership and regulatory 

 situation posed by coastal water areas and resulting restrictions on 

 private use. 



A landowner whose land is slated for expropriation as a recreation 

 area or public refuge is protected by the Fifth Amendment. Acquisition 

 procedures are watched closely by legal counsel and protected in the 

 courts. Acquisition must be for legitimate public purposes (which may be 

 questioned in court) and the government must provide "just compensation," 

 usually defined at the fair market value of the property excluding any 

 influence from the proposed public improvements. The taking issue does not 

 arise because the issues are clear-cut and legislation defines the 

 procedures for expropriation and compensation [1]. 



However, some of the objectives served by the publicly acquired wild- 

 life refuge--protection of endangered species; water quality; and wetlands 

 function--also may be legitimate regulatory objectives under the Commerce 

 Clause for the Federal Government and the Police Power of the State. A 

 regulation adopted to serve these purposes may substantially restrict the 

 use of land without any provision for compensation and still pass the 

 constitutional tests. Depending on the general position of a state's 

 courts, the probability of success in a court challenge to eliminate 

 restrictions on use may range from slight to substantial. 



The uncertainty is compounded by the absence of clear rules from the 

 U.S. Supreme Court. The classic constitutional test for invalidity has 

 been described as a balancing of the public purpose of a regulation 

 against the private harm borne by a landowner; if the balance tips in favor 

 of the landowner, the regulation is unconstitutional and invalid. In most 

 cases, courts arrive at the Supreme Court rule in the famous Pennsylvania 



^Based in part on an article by the author appearing in OCEANUS, Vol. 19, 

 No. 5, fall 1976, (Woods Hole Oceanographic Institution, Woods Hole, 

 Massachusetts) . 



74 



