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PRI's Environmental News Magazine

Rhode Island Talkings

Air Date: Week of

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CURWOOD: "Nor shall private property be taken for public use without just compensation." These are the final words of the Fifth Amendment to the U.S. Constitution and one of the Bill of Rights. Typically, this clause on takings is invoked when highway construction puts homes under the bulldozer. But some say that environmental laws and regulations can also amount to takings of private land for common good. For example, Anthony Palazzolo of Westerly, Rhode Island, has been trying for decades to develop 18 acres of oceanfront marshland. But the state of Rhode Island has repeatedly said no. Now the case is being heard by the U.S. Supreme Court. Living on Earth's Anna Solomon-Greenbaum reports.


SOLOMON-GREENBAUM: Anthony Palazzolo has lived on the edge of the sea for all his 80 years.

PALAZZOLO: We've had a lot of fun here.

SOLOMON-GREENBAUM: He walks me around to the back porch of his little red summer cottage. The paint is fading but the view is vibrant. Cattails give way to marsh, and further out lies Winnapaug Pond.

PALAZZOLO: What we're looking at today was not as it was when I purchased it.

SOLOMON-GREENBAUM: Palazzolo had plans for this land. He wanted to fill in the marsh, then sell it as residential lots. But the state said no. Filling the marsh would damage Winnapaug Pond. So Palazzolo suggested what he thought was a more palatable idea, a beach club without any permanent structures.

PALAZZOLO: The idea was that we would have barbecue pits and picnic tables. Septically, we would have port-o-johns, which the state uses on all their facilities.

SOLOMON-GREENBAUM: But the state turned down the beach club idea, too, and Palazzolo went to court, all the way to Rhode Island's Supreme Court, where he lost.

PALAZZOLO: The state argument was that you must show a compelling reason for improving my property. And they said I didn't show them a compelling reason to do that. And the other side of their argument was they had a compelling reason to leave it as it is, so the people of Rhode Island can come down and enjoy it. And the only thing that remained is I was paying the bills, and that's where the controversy comes in.

SOLOMON-GREENBAUM: It's also where the Pacific Legal Foundation comes in. Staff attorney Eric Grant petitioned the U.S. Supreme Court to hear Palazzolo's case. Because, he says, it raises fundamental Constitutional questions.

GRANT: We all pay our taxes and we are happy to do that as the price of a civilized society. But I think we would each be unhappy if government came to us and said, well, we like your house or we like your car, and we're just going to take them for free, and you're out of luck. But you can have a warm feeling in your heart that you're contributing to the public welfare.

SOLOMON-GREENBAUM: Grant says the state's continued denial of Palazzolo's applications to build constitute, in effect, a taking.

GRANT: That requires the government to compensate property owners whose property is denied all economically viable use.

SOLOMON-GREENBAUM: The state argues that Mr. Palazzolo does in fact have permission to build at least one residence on an upland portion of his property. Its estimated worth is about $200,000. But Grant says the court needs to take into account that Palazzolo's been denied development rights on more than 90 percent of his property. That, he claims, is worth over three million dollars, and Palazzolo should be compensated. If the court agrees, Grant says it would be a milestone for property owners across the country.

GRANT: We're hoping that the court will recognize takings in a wider variety of circumstances. And we hope that the message will read down to the government that it can't just go in and completely destroy the economic value of property without any consequences.

WHITEHOUSE: He's wrong because he never really had the right to develop that land in the first place.

SOLOMON-GREENBAUM: That's Rhode Island's attorney general Sheldon Whitehouse. He says that since Palazzolo's property lies between hard land and running water, it falls in a tricky legal niche. On the one hand it can be privately owned, but on the other it's also a public resource.

WHITEHOUSE: If you walk along Winnapaug Pond, you'll see that everybody has built along basically the same pattern, which is that they put their houses on the high, dry, buildable upland, and they have sort of a tail of wetland that goes down into the pond that essentially nobody has ever built on. And the reason that essentially nobody has ever built on it is this doctrine called the Public Trust Doctrine, which says that the public actually owns rights in that land, and that's what we're defending is the rights of the public in coastal wetlands of Rhode Island.

SOLOMON-GREENBAUM: The state also argues that Palazzolo bought his land after Rhode Island law restricted the filling of wetlands. But Pacific Legal Foundation's Eric Grant says the timing is beside the point.

GRANT: If Mr. Palazzolo's constitutional rights were violated, it shouldn't matter when he acquired the property or when the government enacted the regulations.

KAYDEN: The lawyers for the property owner in this case are arguing a tough proposition.

SOLOMON-GREENBAUM: Jerold Kayden teaches at Harvard's Graduate School of Design, and he's represented both sides in property rights battles. He says property owners and government regulators alike are closely watching the Rhode Island case. They're looking to see if the high court will redefine how the Constitution's takings clause is interpreted.

KAYDEN: If you take Palazzolo's argument to its extreme, then any time a property owner is restricted from developing, government must pay. And that would require a revolution in the jurisprudence that the court had articulated. And so I think that hysteria is not worthwhile.

SOLOMON-GREENBAUM: As for Anthony Palazzolo, he says he and the state could have settled long ago. But he says it's almost triumph in itself just see his case heard by the nation's highest justices.

PALAZZOLO: They saw it, too, that hey, wait a minute, maybe the guy's got something here. And that's why I feel good about it. Win or lose I'll know one thing, that I'll be at peace with myself. I didn't quit. And that's what it amounts to.


SOLOMON-GREENBAUM: A decision in Anthony Palazzolo's compensation case is expected this summer. For Living on Earth, I'm Anna Solomon-Greenbaum.

CURWOOD: Coming up: Exploring a spiritual path through some of China's most moving landscapes. Stay tuned to Living on Earth.

Now this health update with Diane Toomey.

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