10/13/2006

Proposal 4 - Eminent domain standard needed, but amendment has poison pill: Lansing MI State Journal, 10/12/06

Editorial

In 2005, the U.S. Supreme Court set off a national flurry of legislative action on eminent domain - the power of government to seize your property whether you like it or not.

Part of that flurry resulted in Michigan's Proposal 4, a constitutional amendment to limit government's land-taking power.

Limits are needed. Unfortunately, Proposal 4 is simply too flawed a vehicle to bring them about. We urge a "no" vote on Proposal 4 - and new action by the Legislature to create a better constitutional amendment for voter review.

Prop 4's basic premise is eminently sound: Government power over land takings must be strictly controlled, and focused solely on situations that create public assets.

This is the traditional aspect of eminent domain - the government can take your land, at a fair price, to build a road, for example.

But legal actions in 2004-05 highlighted a conflict of thought on eminent domain powers. In 2004, the Michigan Supreme Court rightly overturned a 1981 precedent that had allowed government to act as a land agent for General Motors, seizing land to build a plant.

The argument behind such seizures was that GM's plant was of a greater public benefit than what the existing landowners were doing with their property.

The 2004 Hathcock ruling rejected that philosophy and now serves as a bulwark against Michigan governments deciding who is the "right" property owner and who isn't.

But it's a thin protection.

In 2005, the U.S. Supreme Court, in a Connecticut case, took the opposite tack - endorsing land seizures for private developments, if said developments were expected to make better use of the property.

This galvanized believers in property rights, and led to Prop 4 here.

But Prop 4 has a big problem; a single provision that calls on the government (read taxpayers) to pay property owners at least 125 percent of "fair market value" in legitimate land takings.

Such a premium would no doubt deter any speculative moves on eminent domain. But takings can be limited without imposing such a financial premium. After all, if the land is needed for a clear public use, what's wrong with fair market value to start?

Also, Prop 4 makes no attempt to define what 125 percent of fair market value is. There is no definition of fair market value that binds such negotiations, so any attempt to create an artificially higher figure is bound to lead to more litigation and delay.

Michigan needs a constitutional amendment to complement the Supreme Court's Hathcock decision. It must be made clear that eminent domain is for public assets, not for favored businesses.

Prop 4 almost got it right. But with constitutional amendments, almost is not good enough. We must recommend rejection of Proposal 4.


Lansing MI State Journal: http://www.lsj.com