Monterey Case Gives Supreme Court Opportunity To Strengthen Property Rights Protection

John Kramer
John Kramer · October 6, 1998

Washington, D.C.-The Supreme Court will hear oral argument tomorrow in the most important property rights case this term, City of Monterey v. Del Monte Dunes at Monterey, Ltd,, et al.

“This case will determine whether the Court will build on recent cases and continue adding teeth to the Takings Clause of the Fifth Amendment,” said William H. Mellor, president and general counsel of the Institute for Justice, a nonprofit legal center that filed an amicus curiae brief on behalf of the property owner in the case.

The Institute’s amicus brief was co-authored by Professor Richard Epstein of the University of Chicago Law School, one of the nation’s leading authorities on property rights and the Takings Clause of the U.S. Constitution.

At stake in the Monterey case is the important question of whether property owners have a right to a jury trial when their property is being taken by the government. But even more significant, the Court will decide whether the “rough proportionality” standard established by the Court in the 1994 case, Dolan v. City of Tigard, applies to regulatory takings cases, or cases where the government takes property through regulation as opposed to outright condemnation. The rough proportionality standard imposes a greater burden on governments to justify regulations that interfere with private property rights.

The Monterey case itself documents an incredible history of abuse of property rights at the hands of government planners. The original development proposal in this case was submitted in 1981. And the property owner may only soon, in perhaps 1999, receive justice.

“Sometimes governments deny property rights by providing too little process,” said Mellor. “But as this case demonstrates, too much process can also deny property owner’s rights. Endless applications, reports, inspections, hearings, reviews are coldly calculated to block access to the courts by postponing a final decision until the will or wallet of the property owner is exhausted. This case epitomizes this disturbing trend,” he concluded.

“Cops on the beat are required to respect constitutional rights-government planners should be held to no less a standard,” said Scott Bullock, staff attorney at the Institute for Justice. “A favorable decision in Monterey will hopefully stop planners from trying to make end-runs around the Takings Clause and recent Court decisions protecting private property rights,” he added.