OPINION:
Regulations, whether from administrative agencies or county governments, should not undermine the Constitution or the rights to “Life, Liberty and the pursuit of Happiness.”
A crucial role of government is to protect the property rights of the people, not to so heavily regulate them that the people are bound to their land.
Since the Franklin D. Roosevelt administration, however, the Supreme Court has treated the right to property as a second-class right — or worse. Justice Clarence Thomas said, “Though citizens are safe from the government in their homes, the homes themselves are not.”
A law-abiding citizen’s choice of occupation, as well as what he chooses to do with his property, should not be prescribed by the government.
That is what happened to brothers Arron and Arthur Benedetti, who sought a permit from Marin County, California, to build a second home on 267 acres of land owned by their father since 1972.
Because their father operated a turkey farm on the land, the county refused to grant a permit unless the brothers entered a covenant requiring that they — both plumbers by trade — be “actively and directly engaged” in agriculture.
The county would force the Benedetti brothers to either sell their land, try to farm it themselves or lease it to someone who could farm it. When the brothers litigated, the California Court of Appeals ruled against them, and the state Supreme Court refused to hear the case.
The U.S. Supreme Court should take this case and rule that Marin County’s restrictions, which impose a feudal relationship on property owners, are unconstitutional.
Founding Father James Madison believed that the security of property was essential to the people making their own decisions about their lives and possessions. This may be why half the Bill of Rights consists of property protections.
If one’s land is locked into a singular use, then that person does not possess the freedom to adapt to changing markets and technology. Long-term restrictions, such as those in Marin County, are impediments to a citizen’s personal and financial freedom.
Worse still, they contradict the vision of the Founders.
Although Marin County did not physically seize the brothers’ land, its regulations arguably accomplish something similar by depriving them of the right to decide how to use their property. The Constitution does not allow evading the takings clause, which states that the government may not seize private property for public use without just compensation, by labeling extensive control as “regulations.”
If courts accept Marin County’s interpretation — that preserving an existing land use justifies binding future owners to that same use indefinitely — nearly any future restriction becomes defensible. The “covenant” the brothers are forced to observe was not triggered by them but by the fact that their father had farmed the land decades earlier.
If allowed to stand, historical land use would become a permanent legal encumbrance, binding every future owner’s occupation regardless of changed circumstances, market conditions or personal livelihood.
Through two cases, Nollan v. California Coastal Commission and Dolan v. City of Tigard, the Supreme Court has already established important limits on government permitting. Together, those cases require that permit conditions bear an “essential nexus” to the government’s stated objective and be “roughly proportional” to the impact caused by the proposed development.
Even if preserving agricultural activity is an accepted goal, the burden placed upon the brothers appears far greater than the impact of the proposed residence.
The concern that an additional home being built would encroach upon more commercial uses is speculative. Forcing landowners to remain farmers as the price of building a home on their own property stretches the concepts of nexus and proportionality beyond recognition.
The Constitution does not permit the government to accomplish through regulation what it could not accomplish through direct appropriation, and the takings clause exists precisely to prevent this kind of regulatory overreach from going uncompensated.
A ruling for the brothers does not unravel legitimate land use law. It simply means the government cannot use permits as a backdoor method to commandeer private land for public use without paying for it. Marin County has the right to pursue legitimate policy objectives, but it cannot do so at the expense of forcing private citizens to give up meaningful control of their land.
If the government can condition the use of property to a specific occupation, then the right to property becomes merely a privilege in practice.
John Locke wrote in his Second Treatise of Government that “the great and chief end” of government is to preserve the people’s property. Landowners are not tenants to their government, and if the chief end of government is to preserve the people’s property, the Supreme Court should honor that.
• Marc Wheat is general counsel of Advancing American Freedom. Connor Bolster is an intern at Advancing American Freedom.
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