GETTING PAST “YES OR NO”
LINKING POLICE POWER DECISION-MAKING
WITH JUST COMPENSATION
Dwight Merriam, FAICP
It matters whose ox is gored.
But first, door prizes.
Many of you are world travelers,
so the first prize goes to…
Who has been to 108 countries?
Portland trivia
Portland is 145.4 square miles (376.6 km2).
What is its population?
2011 Estimate by U.S. Census
593,820
The problem:
The desire to protect those
who are burdened often
adversely affects
public interest decisionmaking.
The wind farm
Wind Energy for All, Incorporated
•
•
•
•
•
$50 million
24 megawatt
16 turbines
1,000 acres (6856 m2)
GE 1.5 MW
– 116-foot (35-meter) blades
– 212-foot (65-meter) tower
– 328 feet (100 meter) total
The Hermit’s Castle
An old farm house
Public Utilities Commission
Benefits
• Total economic value
more than $200 million
• Decreased fossil fuel
burning
• Improved air quality
• Serve 8,000 homes
Burdens
• The Hermit’s Castle
– $1 million
• The old farm house
– $20,000
How does the PUC decide?
Public health, safety
and the general welfare…or…
The loss to the neighbors who either have no
interest that is legally protected or whose loss
is too small in absolute or relative terms to be
actionable?
Bright Line Rules
Nonfeasance v.
misfeasance/malfeasance
Nuisance
Spur Industries v. Del E. Webb Development Co.
And Sun City’s neighbor…
The bright line rule…
Coming to the nuisance.
The court’s equitable solution?
Del Webb compensates Spur Industries for its
shutdown or relocation
Trespass
Boomer v. Atlantic Cement Co.
The bright line rule…
Stop the trespass (shut down).
The court’s novel solution?
Cement company buy easements.
U.S. Supreme Court’s Docket
Arkansas Game & Fish Commission v.
United States
• Flooding physical taking case
Three types of regulatory takings
• Physical invasion (Loretto)
– Very simple
• Categorical regulatory taking (Lucas)
– Just like physical invasion
• Partial regulatory taking (Penn Central)
– Three-part test
• Diminution of value
• Investment-backed expectations
• Balancing of public and private interests
Unanimous for Arkansas, but…
“We have recognized, however, that no magic
formula enables a court to judge, in every case,
whether a given government interference with
property is a taking. In view of the nearly
infinite variety of ways in which government
actions or regulations can affect property
interests, the Court has recognized few
invariable rules in this area.”
St. Johns River Management District
v. Koontz
• Nollan and Dolan
– not settled law
.
At oral argument…
Justice Scalia:
“Here, there's nothing that happens. The
permit was denied, unlike in -- unlike in -- in
Dolan, where the permit was granted, and it
was understood that, if she went ahead with it,
she was going to lose -- lose some land rights,
here, the permit's been denied. I can't see
where there's a taking here. Nothing's been
taken.”
Justice Sotomayor:
“…why are we even in this case?”
What does this mean?
The U. S. Supreme Court for itself and for all
courts wants no hard and fast rules when it
comes to balancing the public and private
interests.
The result is chaos and ad hocery run wild.
A modest proposal
Separate the compensation from the public
interest decision making
Examples
• Leaking underground
storage tanks
• National Vaccine
Injury Compensation
Program
• Radiation Exposure
Compensation Act
Trust Fund
For the Wind Farm
“Sustainable Energy Compensation Trust Fund”
Funded by some mix of
ratepayers, governments,
wind energy company,
benefitted citizens, and
others.
Administered by the…
Sustainable Energy Compensation Board
Why not?