Decision by Supreme Court strengthens property rights

Q. We received a notice from our county’s public-works department saying that it will need access to our driveway to make some sewer improvements for our community. We don’t want them parking their trucks in our driveway — or worse, breaking the concrete up to get to our sewer pipe. Doesn’t public works need our permission to take over the use of our property?

A. No, it probably doesn’t.

Nearly all government agencies — and most private utilities — have the right to reasonable access to your property, without your permission, whether it’s to check your gas meter or even to break up your driveway to fix an aging or broken sewer pipe. Besides, do you really want to come home from work or a shopping trip to find a broken or backed-up sewer?

However, the U.S. Supreme Court recently issued a major ruling that some legal experts say strengthens the rights of property owners after decades of decline of these rights.

The Pennsylvania case, Knick v. Township of Scott, involved senior citizen Rose Mary Knick and the 90 acres of farmland that she owns north of Scranton.

There’s a dispute over whether there are a couple of her ancestors buried near the back of her land, but local officials nonetheless declared the space “a public cemetery.” They threatened her with daily fines of up to $600 if she didn’t let the general public traverse her property to visit the alleged grave sites, seven days a week.

Knick sued in federal court, arguing that the new ordinance violated the part of the Fifth Amendment that prohibits the government from absconding or using private property for public use unless the owner is paid for it. But federal courts typically demand that such lawsuits first go to the lower state court and, if the property owner’s state court case is lost, usually can’t be successfully appealed or even heard on the federal level.

That tradition was set by a liberal-leaning U.S. Supreme Court decision in 1985 but was essentially reversed by today’s more conservative court in late June.

Until now, wrote Chief Justice John Roberts, a property owner found “himself [or herself] in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court.”

The Supreme Court’s recent decision overturns that policy, thus allowing owners to go directly to federal court if they feel that their property rights have been unlawfully violated by a local or state government — whether it’s through an outright confiscation or by passage of a new regulation that chips away at their right to private “quiet contentment” of their home and land.

Send questions to David Myers, P.O. Box 4405, Culver City, CA 90231-2960, and we’ll try to respond in a future column.