UNDERSTANDING AMERICAN PROPERTY RIGHTS
SECTION 5 : "POLICE POWERS" - ORGANIC LIMITATIONS ON THE RIGHT TO REGULATE
VESTED PROPERTY RIGHTS
A right vested cannot be divested, resumed, annulled or modifies by the grantor; grant as executed contract, extinguishing the interest of the grantor; prohibition against impairment of obligation of contracts; importance of stability of title.
Saxon law framed as injury to persons (physical and psychological) and property; natural law right to secure rights against aggression; trespass as force or violence with consequence of injury to liberty, security, property and relative equality of rights; "trespass on the case" and nonforcible acts.
DOCTRINE OF STANDING
Unreasonable and substantial interference with another's real property without trespass or physical invasion; equitable relief (injunction and abatement); customary usage
Magnitude of effect to persons of interference or annoyance; purprestures (encroachment on common right); indictment and trial against person; injunction and abatement against property use.
"Each one must so use his own as not to injure his neighbor"; the "police" (or "municipal") powers - substantial injury to human peace, health, safety or morals; the right to prohibit and the power to regulate; the concept of "liberty"; the integrity of private property; the retained powers of the 10th Amendment.
POLICE OR MUNICIPAL POWERS
POWER TO REGULATE
DANGEROUS OR INJURIOUS USE - NUISANCE PER SE
Malum in se; nuisance per se; prohibition/regulation of "unwholesome trades," operations offensive to the senses; dangerous (explosive, combustible);.nuisance per accidens; nuisance in fact; malum prohibitum; nuisance in law; statutes; licenses; the limits of nuisance in law;
NUISANCE IN LAW
Statutory nuisances declared by a legislative body based on "nuisance in fact" as pertains to compatible use in a particular locality; zoning
LEGITIMACY OF LEGISLATIVE DECLARATIONS OF NUISANCE IN LAW
Judicial review as to possible invasion of rights secured by the fundamental law; substantial and rational relation to police powers; in interests of public and not a single class; reasonable and necessary and not unduly oppressive; unwarranted interference or inhibition of harmless occupations; unnecessary or arbitrary invasion of rights of property; unusual and unnecessary restrictions on lawful occupations.
ARBITRARY REGULATION BY THE "COMMUNITY"
ENLARGEMENT PRIVATE USE "CLOTHED WITH PUBLIC INTEREST"
Expansion of the Munn decision to included new categories of business and circumstance considered "clothed with a pubic interest"; distinction between private business intentionally engaged in "public service" and one unintentionally providing a service in which public has interest.
ENLARGEMENT OF THE "POLICE POWERS"
Broadening of the "police powers" of regulation to include public burdens on private property; blurring of the wall between private property and public franchise (juris privati and jus publicum); promotion of the general welfare and prosperity - promotion of industry, development of resources and economic welfare, public convenience or enjoyment.
"GENERAL WELFARE" and "GENERAL PROSPERITY"
Wisdom of the legislature; legitimization of regulation beyond the confines of "public nuisance" in zoning through general planning; shift of burden of proof to the property owner that regulation is arbitrary, unreasonable or without nexus in the traditional "police powers; "general welfare" to include aesthetics, public comfort and convenience.
PERMIT CONDITIONS - "ESSENTIAL NEXUS"
The power of regulation rests on the legitimate power to forbid under the police powers; conditions must have an "essential nexus" with the public harm or dangers that are intended to be addressed by the regulation; unnecessary conditions; doctrine of "unconstitutional conditions" - requirements to give up a right for a discretionary privilege or benefit conferred by government (e.g. just compensation in exchange for a permit.)
PERMIT CONDITIONS -"ROUGH PROPORTIONALITY"
Degree or extent of "exactions" as a condition of permit must bear relationship impact of activity or use
SECTION 6 : EMINENT DOMAIN REGULATORY TAKINGS"
President Reagan's Executive Order 12630; June 30, 1988 "Attorney General's Guidelines for the Evaluation of Risk Avoidance of Unanticipated Takings."
[It should be noted that the author is not an attorney. The comments presented are the author's opinion and should not be construed in any manner as legal advice or counsel. Concepts presented are intended for discussion purposes only. Full text of Supreme Court decisions may be located though "FindLaw" on the Internet. ]
Copyright 1998, 1999, 2000 Marcia H. Armstrong. All rights reserved. Permission granted for non-commercial use and distribution with appropriate attribution to sources.