I have just returned from attending the American Bar Association State and Local Government Section’s spring meeting in Miami (April 28-May 2) and attended several compelling programs there that I’ll be featuring for you in the next few blog entries.

The first program on Friday morning set the tone for the rest of the day with world-class (literally) speakers on the issue of comparative land use, eminent domain and regulatory takings across various national jurisdictions around the world.

The panel was organized around the recently published volume by the ABA press, Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights, edited and coauthored by Professor Rachelle Alterman, an Israeli lawyer and planner who teaches at Technion – Israel Institute of Technology in Haifa, Israel.  The panel was moderated by my friend and colleague, Robert Thomas, a land use and appellate lawyer based in Honolulu, Hawaii.  The panel included several of the book’s authors and leading experts on the law of eminent domain and regulatory taking as it exists in judicial systems around the world.

Professor Alterman began her remarks by pointing out that though no other country comes close to the United States in the amount of litigation, academic writing and public media generated on the issue of takings, it does not have the broadest compensation rights.  In fact, the US is generally in the middle of the pack, with Poland, Germany, Sweden, Israel, and the Netherlands offering significantly more to the landowner in compensation for taking of property by the government, with the Netherlands, interestingly, having the highest rate of compensation

Professor Bryan Schwartz, a member of the law faculty at the University of Manitoba, Canada, contrasted the treatment of real property rights under the constitutional systems in the US and Canada.  Under the Canadian legal system, property rights are not as explicitly protected in the text of the Canadian constitution or statutes, as they are in the US, though private property rights do show up in common law decisions, or judge-made law.  Canada also looks at property rights in the context of the comparative legal order; in other words, Canadian judges will examine what other countries in the world are doing and how that informs what the standards in Canada should be.  Though US Supreme Court has occasionally used this comparative legal analysis in some cases: (capital punishment for juveniles, for example) it is far less common in the US courts to look at other nations’ laws or judicial decisions.

Professor Russell Brown, a law professor at the University of Alberta, Canada, recognized that there are other bases for compensation other than constitutional bases (under the US Constitution, the Fifth Amendment) For example, international treaties like the North American Free Trade Agreement (NAFTA) may provide a basis for private property protection.  Some arbitration panel decisions under these trade agreements might actually provide a lower threshold for compensation than under the current state of the US Supreme Court’s constitutional analysis. Another source of protection is the common law of some judicial systems. In Canada, New Zealand, and the UK, that is where the action has been.

In Canada, uncompensated takings are barred, absent legislation that makes it clear that a taking is to be without compensation.  So, uncompensated takings are allowed, as long as it is transparent.  This requirement of explicitness has been an effective discouragement to taking, since it requires legislative action, though it has resulted in taking of property belonging to entities and owners who were politically unpopular. For example, Vancouver zoned a railroad property rather than expropriating it (paying for it).  He assumes this would not pass muster under the US Supreme Court’s Kelo decision.

Prof. Brown concluded by pointing out that there is also an entire body of international law, like the UN Declaration of Individual Rights, that deals with taking of private property and which is incorporated into Canadian and US law through participation in the Organization for American States (OAS).

Prof. David Callies, who teaches at the University of Hawaii School of Law (and is former chair of the ABA SLG Section) addressed takings in Asia.  In most Asian countries there is no regulatory taking, but expropriation (actual physical taking of title by the government) is a huge issue.  The question of expropriation in Asia is not whether the government can do it (it can) but the mechanics of it.  How does the government calculate compensation?  How much compensation is required by the law, or the political process? Professor Callies gave examples of situations in which threats of violence and civil unrest by those whose property is being taken in the countryside has gotten the government’s attention in Asia, and has led to compensation in those countries.  Across Asia, the kind of takings law that exists depends on the kind of legal system the country has.  If it is derivative of the UK, such as in Singapore and Malaysia, you will find links to the town and country planning system from England. In those countries, the comprehensive plan does not arise locally (as in the US) but from a national planning panel, based on a national physical plan.  Our contribution (US) was to make zoning popular, but the mechanism of implementation in Asia, largely is through a national plan.

Prof. Tom Roberts, of the Wake Forest University School of Law, also a former chair of the Section (and my real property professor) concluded by talking about perception versus reality in the US protection of private property rights.  In Europe, the impression is that we are a strong property rights country. We are a very conservative society, compared to rest of world.  In US Supreme Court decisions, though, the court has not gotten very much involved in local zoning as it affects individual property rights.  The decisional law is based on the Fifth Amendment.  Our country has no federal legislation and very little state law protecting property rights.  In fact, a local zoning law has never been found to be a taking.  The Lucas decision, for example, did find a taking under its facts, but it involved a state statute.  There have physical invasions of property (Nolan/ Dollan) and actual physical taking (Loretto) but these, again, did not involve local zoning.

A copy of the book can be purchased on the ABA website, http://www.abanet.org/abastore.

* Andy Gowder