Recently a member of the Highlands Council was quoted as saying that the Highlands Water Protection and Planning Act took people’s property without compensation in violation of the Fifth Amendment of the U.S. Constitution and Article 1 Paragraph 20 of the New Jersey Constitution. According to a post in the EnviroPolitics Blog, Richard Vohden referred “to the devaluing of property values for those unable to subdivide or sell due to the law, Vohden said, “If that’s not a ‘taking,’ I don’t know what a taking is.”” The Council’s newest legal counsel has also repeated this sentiment. These are very unfortunate statements and just wrong on the law.
f the Highlands Act has devalued the property why is it not a taking? The Highlands Act, especially in the Preservation Area, required much more acreage to build on. In essence it created minimum lots sizes, which are large. It is this large lot sizes that some believe have taken their land. This is what Vohden is referring.
To understand why Vohden and others making the same claim are wrong you must understand takings law. The basis for takings laws can be found in the U.S and NJ constitutions. The Fifth Amendment of U.S. Constitution provides, in part: “nor shall private property be taken for public use, without compensation.” Article 1, Paragraph 20 of the New Jersey Constitution provides: “Private Property shall not be taken for public use without just compensation.” New Jersey Courts have determined that the New Jersey Constitution and the U.S. Constitution protect this right equally.
The New Jersey Supreme Court and the Federal Courts have ruled that the 2004 Highlands Water Protection Act is not a takings. But Vohden’s statement is repeated often enough by people affected by the Act. I suspect that as we rebuild from Sandy, if we are to do it right, people along the coast of New Jersey may be saying the same thing.
When does a law or regulation take private property? I would start out by noting that for many years legal scholars and courts did not believe that the Constitution protected against “taking” of property through regulation. It was originally thought that the only taking the constitution protected against was a physical taking by the government. That thinking has evolved and probably will continue to evolve.
Currently, the U.S. Supreme Court has held that regulations that impact property are not a taking just because the regulation may have an impact on the value of the property. The Court has said in numerous cases, “Government hardly could go on if to some extent values incident to proper could not be diminished without paying for every such change in the general law.” Everyone’s ownership of land is subject to the reasonable exercise of state’s authority. At one point the Court would look to see if the regulation addressed a noxious and harmful uses of the property. A property owner has never been able to use their property in a way to could harm another’s property. If the regulation addressed a noxious or harmful use of the property than the courts would not find a taking even if the property had no use after the regulation.
When a regulation takes all value from a person, the Court has indicated that is a regulation that has the same effect as a physical taking and will require compensation under the Fifth Amendment with one exception. The Court has said that a state could avoid payment when the regulation controls an aspect of ownership that was not part and never was part of the property’s bundle of rights. A property owner could not flood his neighbor’s property so a regulations or a statute that prohibited such a use, even if that was the only use of the property would not be a taking.
When a regulation does not take all economic value from the property as a whole the court will take a look at whether the regulation substantially advances a legitimate state interest. If the legislation substantially advances a legitimate state interest than the Court is unlikely to find a taking. The Supreme Court in Lucas v. South Carolina Coastal Commission set out some items to look at in these situations:
- Degree of harm to public lands and resources or adjacent private property
- Social value of the claimants activities
- Suitability of the activity to the area
- Relative ease with which the alleged harm can be avoided through measures taken by the claimant or the government
- Whether the use has be historically engaged in by surrounding properties.
In light of the criteria above, the Highlands Act clearly does not violate the criteria. The Highlands Act was enacted to counter the damage that unrestrained growth was having on the State’s water supply. This unrestrained growth was impacting not only the quality of water but the quantity as well. There were no realistic alternatives to protect the water quality and quantity other than to protect the lands that recharged the waters. I would also argue that historically development in the Highlands area was very spread out and low intensity. It was only in recent years that development concentrated in the area. To sort of wrap this up, the Highland Regional Master Plan requires land within the preservation area and not part of a sewer service area to have large lots. Is that a taking? Under current constitutional law, the answer is no. Attacks against the Highlands Act have been unsuccessful in State as well as Federal Courts.
The lessons we have learned in the Pinelands and the Highlands may help guide us as we hopefully address our coastal region. Hopefully the State will put into place regulations to protect the coastal region. If that occurs I would suspect that we may hear the same false claims as in the Highlands. Luckily no matter how many times it is said, mere regulation of property is not a taking.