11/02/2006

Voters will take on eminent domain and a lot more: US News & World Report, 10/29/06

A Host of Questions

By Will Sullivan

Rod's Grill, in Arcadia, Calif., has really been Manny Romero's grill since he bought the place 10 years ago. And in that decade, he has built a loyal following. So when the city wanted to seize the restaurant property through eminent domain and turn it over to a nearby car dealership seeking to expand, the community objected-and the restaurant survived. "I have the same right to do business ... as the Mercedes-Benz dealership," Romero insists.

He isn't the only one chafing under the current use of eminent domain. Twelve states-including California-will vote November 7 on limiting the government's ability to regulate and seize property. The ballot measures signal outrage at the Supreme Court's 2005 decision in Kelo v. New London, which seemed to broaden governmental power to take private land. But opponents of the measures see them as a misleading effort to further a radical property-rights agenda.

Eminent domain is not new, but it has typically been used to take property for obvious public uses, such as roads. In Kelo,the court held that seizing land for private projects that promoted economic development could qualify as public use. Since the decision, 31 states have already restricted the government's power of eminent domain. Most of the ballot measures would focus mainly on undoing Kelo. But the most aggressive initiatives-found in Arizona, California, Idaho, and Washington-would go further, requiring that the government also compensate property owners for "regulatory takings"-regulations that damage a property's value.

Zoning? Polling suggests all four regulatory takings initiatives will pass; backers are focusing on examples of eminent domain abuse. But Howard Rich, a New York real-estate investor who has spent millions of dollars trying to get the measures on the ballot, says, "It doesn't matter if government takes your property outright or regulates it to the point of little or no value; the result is the same."

Critics of the regulatory takings measures, including conservation and anti-tax groups, say they could strain government budgets or severely limit the ability to enforce environmental or zoning regulations. In Oregon, where a similar law has been on the books since 2004, the state has largely waived any sort of property restrictions rather than compensate landowners. Suzie Kunzman, an alpaca farmer in Molalla, Ore., became a cautionary tale after her neighbor tried to build a gravel mine behind her house; that issue is still unresolved.

The eminent domain measures are among the boatload of ballot questions - 205 in all - that voters will face this November.


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