- The Washington Times - Thursday, March 8, 2001

Eighty-year-old Anthony Palazzolo has been trying to use land he owns in Rhode Island for half his lifetime. It doesn't seem an unreasonable idea. The land was already subdivided. Nearby neighbors have dotted the landscape with their own beach houses and cottages. To the west of him, there is a parking lot for 2,800 cars owned by the state. Not far to the northwest is an airport. Oh yes, and he's been paying taxes on the property since 1959.

Mr. Palazzolo, however, turns out to matter much less to Rhode Island than the finny, feathered squatters who have moved into the property in the meantime. Five times the state has turned down his applications to use his own land, most recently in 1986, because as an 18-acre bog, the land served as a "refuge and feeding area for larval and juvenile finfish and shellfish and for migratory waterfowl and wading birds." Further, it facilitates "the exchange of nutrient/waste products," and allows "sediment trapping," "flood storage" and "nutrient retention."

Last week, Mr. Palazzo finally got his day before the U.S. Supreme Court, the highest and latest step in a court fight that began in 1988. He agrees that Rhode Island can indeed take his land in the name of larval finfish. What it can't do, though, is refuse to pay him for it. Given the Fifth Amendment clause which holds that "taking" private property requires "just compensation," Mr. Palazzolo would seem to have a pretty good case.

Rhode Island, backed by 18 other states and assorted environmental groups, responds that state regulators really didn't take anything. Yes, it denied him his application to establish a beach club; not only would it have ruined the bog, it would have hampered state-required "scenic diversity" (unlike, say, a 2,800-car parking lot would). Still, the state says it would have permitted him to build a house on a small portion of his land not part of the swamp. The state estimates he could have got about $200,000 worth out of that. Alternatively, he could have offered the land as an "open-space gift" worth about $157,000 to him. Because Mr. Palazzolo values the land at more than $3 million, however, the state is arguing that because it allowed him a fraction of his land, it didn't really take the whole thing.

The U.S. Court of Federal Claims has put such ploys in proper perspective. "The notion that the government can take two thirds of your property and not compensate you but must compensate you if it takes 100 percent," the court said, "has a ring of irrationality, if not unfairness, about it. If the law said that those injured by tortious conduct could only have their estates compensated if they were killed, but not themselves if they could still breathe, no matter how seriously injured, we would certainly think it odd, if not barbaric. Yet in takings trials, we have the government trying to prove that the patient has a few breaths left, while the plaintiffs seek to prove, often at great expense, that the patient is dead. This all-or-nothing approach seems to ignore the point of the Takings Clause."

Rhode Island also argues that there was no taking here because Mr. Palazzolo was somehow on "notice" when he bought the land that the land-use restrictions were in place. (The state argues he didn't get sole possession of the land until 1978 after the implementation of the regulations even though he was the only stockholder in a corporation that owned the land prior to that.) Lawyers who filed a brief on behalf of the states backing Rhode Island sought to dehumanize Mr. Palazzolo as a land "speculator" who should have known the state wouldn't permit his venture.

Lawyers for the Pacific Legal Foundation (www.pacificlegal.org), who helped Mr. Palazzolo take his case to the high court, are impatient with the "notice" argument. The group's Eric Grant put it this way to the New York Times. Imagine, he said, that a government says that henceforth it's going to conduct strip searches of residents without probable cause: Newcomers take notice. Think the courts aren't going to defend newcomers' rights against such governmental invasions?

Neither does anyone else. If Rhode Island and its allies successfully shield themselves from the takings clause, it would say less about the merit of advance warning than it would about the judicial estrangement from the Fifth Amendment relative to more celebrated constitutional siblings like amendments barring government from infringing on free speech or conducting illegal search and seizures.

The irony is that as John Locke, a key influence on the drafting of the U.S. Constitution, pointed out, property serves as the foundation for all these other rights. Man, he said "seeks out, and is willing to joyn in Society with others who are already united, or have a mind to unite for the mutual Preservation of their Lives, Liberties and Estates, which I call by the general Name, Property."

Fish larvae notwithstanding, Mr. Palazzolo isn't going to let Rhode Island forget it either.

E-mail: [email protected]

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