Don’t Build That: Government Threats to Americans’ Property Rights Multiply


This article is part of a series focusing on Lens of Liberty, a project of the Vernon K. Krieble Foundation.

The Takings Clause of the Fifth Amendment forbids that “private property be taken for public use, without just compensation.” However, time and time again that clause has not stopped governments from trying to deprive citizens of the use of their property.

In her Liberty Minute titled “Good Fences Bad Government,” Helen Krieble talks about one of these such instances which occurred when the government used fencing regulations to deprive a New England farmer of the use of his property:

The stone walls that surround old farms in New England are an important part of the character and beauty of many rural communities. They are a reminder of our history and are still functional. But at one such property the old stone wall was twenty-five feet from the road while the town decided the fencing needed to be fifty feet from the road. They required the owner to build a new fence at great cost. This would have denied that farmer the use of more than ten percent of a twenty acre farm. He fought back and won.

If we look through the lens of liberty, we see how misguided such policies can be. The Constitution prohibits governments from taking people’s property without just compensation. Doing so is stealing. We the people need to stand up to freedom snatching regulations wherever they occur.

Fortunately the farmer in Krieble’s example fought the unjust regulation and won. However, on the other side of the country a similar battle is just heating up.

Over in California, residents’ ability to enjoy their oceanfront properties is being threatened by the California Coastal Commission’s policy on seawalls. While the California Coastal Act recognizes the right to build seawalls to protect homes from powerful ocean storms, the state agency is adamantly against them.

Christina Martin and Larry Salzman, attorneys at the Pacific Legal Foundation, recently wrote an article for The Daily Signal explaining the seawall case which their public interest law firm has gotten involved in:

For some years, when homeowners have sought permits to repair or replace existing seawalls, the commission has come back with harsh demands such as time limits on  a permit—leaving the owners in fear they’ll have to tear out their seawalls and abandon their homes in the future.

The agency has gone further by imposing heavy-handed conditions on new residential development. If you own a coastal lot and want to build, you must promise never to put in a seawall to protect your future home from the ocean’s force.

This edict is a direct threat to owners of oceanfront property, of course. But it should concern all of us, no matter where we live, because it is an example of a powerful state agency abusing its authority.

Not only does the agency’s regulation violate the property rights guarantees found in both the state and federal constitutions — it also violates certain legal and procedural requirements. California law requires regulators to notify the public, conduct hearings, and listen to public comment before implementing policies like this, but the commission followed none of those proper procedural steps. As Martin and Salzman put it, the commission imposed its anti-seawall restriction by “fiat” behind closed doors.

On account of this, the Pacific Legal Foundation is asking state officials to “acknowledge formally that the Coastal Commission acted unlawfully in implementing its ‘no seawalls’ rule for new residential development.” It is also threatening that a legal challenge may follow.

Whether we’re talking about the property rights of farmers in rural new England or of landowners on the Pacific coast, as Krieble says, “We the people need to stand up to freedom snatching regulations wherever they occur.” All of our property rights are at risk if the government is able to get away with such unconstitutional behavior.

Terry Schilling

Terry Schilling is executive director of the American Principles Project.

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