Property Rights Threatened by Lawmakers’ Economic Development Interests

REMOVING CITIZENS’ POWER TO HOLD THEIR NEIGHBORS ACCOUNTABLE?

UPDATE: The final version of the bill placed parameters on the bill’s scope, but the core of the proposal – the violation of property rights – remains the same. The amended version defines “reasonable expansion,” and only allows the nuisance exemption to be transferred to another facility if that new facility is operating is operating for the same purpose. Finally, the new language would no longer prohibit local governments from passing laws labeling these facilities as a nuisance, although it’s still unclear if such ordinances would conflict with this bill if it becomes law. However, the bill would still limit personal property rights and deprive citizens of their right to challenge their disruptive neighbors in court. The governor signed the bill into law on 2/13/18.

While statewide attention has been focused on the House’s debate of their energy “reform” bills, lawmakers in the Senate this week have been quietly trying to pass a bill that would damage personal property rights and allow special interests to operate with immunity from legal action.

H. 3653 would exempt any manufacturing or industrial facility operating in the state from nuisance lawsuits. This exemption would apply to any manufacturing or industrial facility so long as that facility has applicable operating permits and began operations “before a change in the land use in the vicinity” – basically, if that facility was there before its neighbors. Once this exemption is acquired, it becomes a permanent asset of that facility and can be inherited by and assigned to other businesses. If that weren’t bad enough, the exemption prohibits any local government body from passing ordinances labeling an exempted business as a nuisance, thereby revoking their jurisdiction over those particular local matters.

The potential negative consequences of this bill cannot be understated.

First, this bill is a direct violation of personal property rights. If passed, it would prevent individuals from protecting their property against unwanted disturbances from neighboring manufacturing and industrial facilities. Nuisance lawsuits can help homeowners defend their property value, or can attack the property rights of businesses. Adjudicating those disputes to protect actual rights vs. perceived rights is what the courts are for. The danger of this bill is that it would deprive individuals of their day in court.

In addition, this legislation would remove the natural incentive to operate in a more ethical, responsible manner to avoid lawsuits. When the enforcement of “applicable federal and state law” is the only real accountability business owners need to consider, there is nothing to prevent them from stretching the boundaries of what that law permits.

Manufacturers could also expand operations without losing their protected status, so long as the expansion is considered “reasonable” – which is not defined in the bill — and follows necessary local, state and federal laws and regulations. In other words, a manufacturer’s noise level could double and residents across the street would simply have to put up with it, provided the plant is obeying the law.

Lawmakers have framed this legislation as an opportunity to encourage businesses to invest in South Carolina. Without burdensome legal hurdles, they argue, the state will be a more viable destination for potential manufacturers. The reality is, however, that economic interests should never infringe on individual rights.

This bill is the latest instance in the legislative trend of eroding individual rights (including property rights, second amendment rights, and speech rights), and a bill this broad and vaguely defined could have serious unforeseen consequences for years to come.