- Regulatory takings differ from physical takings in that the government does not assume possession of the property. Rather, the owner's use of the property is restricted by regulations – most commonly environmental prohibitions.
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The protection of constitutional rights needs to be reintroduced to the system of regulation. If the government deems it necessary to restrict the use of private property for environmental protection (or any other reason), landowners should be compensated. It is one thing to protect wetlands on property held in public trust; it is entirely something else to require private landowners to bear those costs without compensation.
Government officials, with the assistance of judges who have shown little regard for private property rights, have been able to take private property for politically popular causes without having to pay for it. As lawmakers work to protect property owners from government takings for economic development, they would be wise to also address the widespread problem of regulatory takings.
If the Legislature fails to protect private property, it will fall to citizens to address the issue through a ballot initiative. That is precisely what happened a year ago in Oregon, where voters handily passed a ballot initiative requiring state government to pay landowners for the loss of use of their property. The Oregon law specifies that if the government cannot afford to pay the landowner, or chooses not to, then the land use restrictions do not take effect.
A lower court subsequently declared the Oregon law to be unconstitutional, and issued an injunction barring its enforcement while the case is under appeal. Nevertheless, it is past time for Michigan property owners to be afforded the protections demanded by Oregon citizens and which are among the most fundamental of our constitutional rights.
Time For a Measure 37 in Michigan?
The Mackinac Center's Russ Harding asks Michigan citizens to demand limits on regulatory takings, similar to Oregon's Measure 37: