In theory, our law says the government will compensate us for taking our property, but in practice? Not always. Just ask the hundreds (or is it thousands) of seniors and retirees who own land near Lake Tahoe.
While both the state and federal constitutions promised them compensation for government taking their property rights, they got nothing. Not a penny, despite prosecuting their rights all the way to the U.S. Supreme Court. Last year's decision by our highest court shows the difference between the theory and the practice. We need to learn from our history.
At common law it was said, "Be it ever so humble, a man's home is his castle." But it also said, "The king can do no wrong." If the tyrant, or his vassals, wanted your home, or your daughter: " Well, tough luck."
I think it's time for a reality check. Starting with Magna Carta in 1215, individual property rights advocates fought a bloody, uphill battle against overwhelming odds, culminating with the ratification of the Bill of Rights in 1791, which includes the Fifth amendment's guarantee of compensation for government taking. Our forefathers had British redcoats quartered in their houses and barns, eating their foodstuffs, taking everything they had, and so they decided that the United States' citizens would never suffer that again without getting paid for what was taken.
The California constitution guarantees "just compensation" for government taking, and in 1982 the California Supreme Court made it clear that the taking must be for public, not private, use in City of Oakland V. Oakland Raiders. So much for theory.
In practice our constitutionally protected rights are gutted, just like those of the Asian landowners (e.g., Chinese, Japanese, etc.) here in California by enactment of the first California initiative, The California Alien Land Law of 1911, which withstood constitutional challenges until World War II was over.
Last April's decision by the U.S. Supreme Court, Tahoe-Sierra Preservation Council V. Regional Planning Agency, shows us that the tyrant's rule has not changed much in 787 years. A majority of the justices held that California local government did not have to pay landowners when taking their property rights. Will we learn from history?
Eighty years ago Justice Holmes warned us about berserk government: "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitution way of paying for the change." Did we learn anything from the great dissenter?
No, according to Mr. Chief Justice Rehnquist, who wrote the dissenting opinion for the minority in last year's decision. Those of us naive enough to trust our government are in for a rude awakening. Forsaking your neighbor's rights is a dangerous precedent when your turn comes.
Is it time, once again, to take the tyrant down, once again? Or will we let him take our neighbors' Sovietization of our land? This is not what my ancestors fought for in the Civil War, WWI, WWII, and Vietnam.
I urge you to follow the advice of Mr. Chief Justice Rehnquist in his dissenting opinion in Tahoe Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency - government has gone too far abridging the constitutional rights of our citizens.
Today our government in San Benito County authorizes uncompensated taking of private property on hill tops. Tomorrow, who knows? Do we attack "trophy houses" alongside of creeks? Farms on sacred Indian land (i.e., the entire continent of North America)? If Reb's walnut orchard offends his neighbors' "viewshed," or ultra-socialist sensitivities, do we authorize the government, like a South American dictator, to violate his property rights, too?
Dr. Zhivago-San Benito arrived in San Benito County during your watch. Will we see Robespierre and the Terror on the next? Shame on our government leaders! Marx, Engels, Trotsky and Lenin would be proud of you. Condemn your actions furthering the Sovietization of our county. Caveat Viator!
Joseph P. Thompson, Tres Pinosº
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