Protecting Property Rights in a Landslide: The Reason Foundation, 11/8/06

Voters in nine states pass measures to curb eminent domain abuse

By Leonard C. Gilroy

Besides Democrats, and anyone hoping for gridlock in Washington, the big midterm winners were homeowners in the nine states that passed initiatives protecting property rights and reigning in government's power to take homes and businesses.

These initiatives were sparked by the Supreme Court's controversial ruling in the Kelo vs. New London decision last summer, which gave the government a green light to use eminent domain to take private property and turn it over to developers for "economic development" purposes.

Most Americans were rightfully incensed at the notion that government could arbitrarily evict people from their homes, businesses, and churches simply because it could generate more local tax revenue if these properties were redeveloped as condos, offices, and hotels. Traditionally, eminent domain was only used to acquire private land for clearly defined public uses—such as roads, parks, and public buildings—but Kelo opened the door for government to condemn property for almost anything that it could argue had a public "benefit."

The backlash was immediate. In the year since the Kelo ruling, over two dozen states passed legislation to curb eminent domain abuse, and on Tuesday, voters passed a variety of measures intended to do the same thing.

An overwhelming majority of voters in Florida, Georgia, Michigan, New Hampshire, and South Carolina approved constitutional amendments that forbid the use of eminent domain to transfer land from one private party to another for economic development purposes, as did Louisiana voters last month. Similar voter-initiated constitutional amendments passed in both North Dakota and Nevada, though Nevadans will need to pass the same amendment in 2008 for it to take effect.

Of all states, voters in Oregon have taken one of the strongest stands in recent years to protect their property rights. Measure 39, a statutory initiative that reigns in eminent domain abuse, passed yesterday by more than a two-thirds margin. Moreover, Measure 39 followed on the heels of voters' passage of Measure 37 in 2004, which was designed to protect Oregonians from "regulatory takings," a far more pervasive threat to private property rights than eminent domain abuse.

Local governments routinely pass restrictions on the ability of property owners to use their land in ways legal at the time they bought their property—resulting in enormous losses to private property values — without compensating owners for these impacts. After several decades enduring egregious regulatory abuse, Oregonians passed Measure 37 to require government to either pay landowners for these "regulatory takings," or waive the regulations.

Voters in Arizona followed Oregon's lead Tuesday and passed Proposition 207 — the Private Property Rights Protection Act — by a 65-35 margin, breaking new ground in the process. Prop 207 was designed to address both eminent domain abuse and regulatory takings in one comprehensive set of property rights protections in what has come to be known as a "Kelo-Plus" initiative. Untested prior to this election, the passage of Prop 207 establishes "Kelo-Plus" as a feasible strategy to target the two biggest threats to property rights in one fell swoop.

However, two similar "Kelo-Plus" measures failed to pass. Despite garnering over 3 million votes, California's Proposition 90 was defeated by a 52 to 48 margin. Idaho's Proposition 2 also failed to pass. Opponents of these measures — including environmental groups, municipal associations, and urban planners — mounted a vigorous campaign to defeat them, outspending measure proponents by a wide margin. Voters in Washington state also defeated Initiative 933 —a regulatory takings measure modeled after Oregon's Measure 37—by a 56-44 percent margin.

Despite the success in Arizona and Oregon, the defeat of the California, Idaho, and Washington measures indicates that regulatory takings reform faces higher hurdles to voter appeal than pure eminent domain measures. Not only do they generate more opposition from a variety of special interests that benefit from government's unfettered ability to regulate, but the issue is inherently complex and largely unfamiliar to voters.

And given that regulatory takings frequently occur in conjunction with zoning regulations preventing development on agricultural land or open space, the issue resonates more with rural voters than city dwellers, as the geographic breakdown of voting for California's Prop 90 suggests. Support for Prop 90 was strongest in the Central Valley, the Northeast, and Southern California, while opposition centered in the Bay Area and Los Angeles County. The key for future campaigns will be to craft a message that more effectively connects with urban voters.

However, viewed in total, the results of yesterday's election indicate that the property rights movement is alive and well. Millions of citizens nationwide sent a clear message to elected officials: they care very deeply about property ownership, and they're willing to go to the ballot box to protect their rights.

The concept of private ownership of real property is a fundamental part of our society and one of the core freedoms that our country and economy is built on. As the election showed, Americans increasingly understand that the government is there to protect the right to that property, not to take it away.

The Reason Foundation: http://www.reason.org

Leonard Gilroy is a certified planner and policy analyst at the Reason Foundation.


New York developer's eminent-domain crusade comes to California: Capitol Weekly News, 7/13/06

By Shane Goldmacher

Howard Rich may live in New York, but he has waded deep into California politics. The multimillionaire developer, and president of U.S. Term Limits, has bankrolled California's eminent-domain measure to the tune of $1.5 million. But the money is only one front in Rich's national crusade against eminent domain, an effort that spans more than a half-dozen states and millions of dollars.

"We have the ability to, in effect, bypass legislatures by going directly to the people through the initiative process," says Rich from his New York office.

Through a web of organizations, Rich is backing eminent-domain initiatives in Arizona, Idaho, Missouri, Montana, Nevada, Oklahoma and Washington with $4 million - though no state has received as much financial support as California. In each of these efforts, Rich himself is never disclosed as a major donor. Instead, he steers his contributions through nonprofit intermediaries, such as the Fund for Democracy, which he is using to finance California's Proposition 90 campaign.

"I think California often leads the nation," says Rich. "It is the largest, most populous state and it is very important to us that property rights be restored there."

But the influx of out-of-state money pushing measures to amend state constitutions across the country has angered many local activists.

"They are backed by an organization that is chaired by a New York real estate developer and that makes you wonder who is going to benefit," says Aaron Toso, spokesman for the campaign against Washington's eminent-domain measure. "Obviously if people don't live here they wont have to pay the extra taxes and sit in the extra traffic."

Here in California, opponents of the eminent-domain initiative are also accusing Rich of pushing his unwanted, out-of-state agenda on the state's voters.

"The fact that this one guy from New York, an out-of-state multimillionaire, has decided, 'I know what's best for the nation and I am going to tell all the state's how to do things right' … that's offensive," says No on 90 spokeswoman Kathy Fairbanks.

But Kevin Spillane, spokesman for Yes on 90, defended Rich's contributions.

"This is really a grassroots, populist issue. It is one of the government, the political establishment taking advantage of power against the little guy," says Spillane, who adds that the campaign has raised money from more than 5,000 individual donors in California since Rich's contribution. "It is very much a California-driven issue and we are busy raising money from Californians to fund it."

But ultimately it was Rich's money that pushed the issue onto the November ballot.

Earlier this year, Sen. Tom McClintock, R-Thousand Oaks, the GOP nominee for lieutenant governor, tried to gather signatures to qualify his own eminent-domain measure - one that was far less sweeping than what is now Proposition 90. But McClintock's efforts failed due to a lack of funding.

McClintock could only secure pledges totaling $1 million. He credits Rich with providing the money needed to bring the issue before the voters. "They were able to raise the money to qualify their initiative. I was not," says McClintock, who has endorsed Proposition 90. "I learned during the car-tax initiative that if you don't have the money lined up before the signature gathering, you shouldn't start."

So who is the man behind Proposition 90?

He's certainly no stranger to California politics.

As far back as 1990, Rich recalls making a small contribution to California's original term-limits measure, Proposition 140. In 2002, when then-Senate leader John Burton, D-San Francisco, placed a term-limits extension on the ballot, Rich responded by corralling a $1 million donation for the campaign against the measure, through an affiliate organization, Americans for Limited Terms, less than three weeks before Election Day.

"The bad guys were very surprised by that funding at the end," remembers Rich.

For Rich, the "bad guys" have always been incumbent politicians and those seeking to expand the reach of government.

A former libertarian party activist (he officially left the party in 1983), Rich has deep roots in limited-government politics. He sits of the board of directors of the Cato Institute, a libertarian think tank based in Washington, D.C., and he is the chairman of Americans for Limited Government, a national coalition dedicated to smaller government.

His wife, Andrea, until recently owned the libertarian Laissez Faire bookstore in New York, and in 1990 he and his wife acquired the Libertarian Review Foundation and renamed it the Center for Independent Thought. He and his wife also have been financial backers of Reason, a leading libertarian monthly magazine.

In 1992, Rich bought the Citizens for Congressional Reform, then a leading term-limits advocacy group. He quickly reorganized the group as U.S. Term Limits, with himself as president, and heaped $1.8 million on various state term-limit campaigns by the end of the year, according to Common Cause.

"My interest is in restoring property rights, in term limits, and in capping state government spending at some reasonable limit," says Rich, whose Americans for Limited Government is also sponsoring spending measures in eight states this year.

Rich calls term limits his "first love." But since the Supreme Court's decision last year that expanded the right of government to seize private property for public use, his focus has been on reducing government's ability to use eminent domain.

Here's what his network of political committees and nonprofits have done:
  • In Missouri, Rich donated more than $1.3 million to gather signatures for two measures, one of which would limit government spending, the other to limit eminent domain, through Americans for Limited Government. But both measures were tossed from the ballot by the secretary of state, though a pending lawsuit is challenging that decision.
  • In Arizona, the Rich-run Americans for Limited Government has contributed $650,000 to qualify an eminent-domain measure.
  • In Idaho, Rich's Fund for Democracy, the same nonprofit that donated in California, contributed $237,000 to help qualify an eminent-domain initiative.
  • In Nevada, the eminent-domain effort, titled PISTOL, or the People's Initiative to Stop the Taking of Our Land, lists only a single endorsement on its Web site: Americans for Limited Government. The campaign's most recent filings do not list a Rich-backed organization as a donor.
  • In Washington, an eminent-domain measure that qualified for the fall ballot this week has received $200,00 from Americans for Limited Government.
  • In Oklahoma, Americans for Limited Government contributed $55,000 to a group called Oklahomans in Action that pushed for an eminent-domain initiative, though the state's supreme court struck down the measure last month because it dealt with multiple subjects, a violation of the state constitution.
  • In Montana, a group with a near-identical name, Montanans in Action, has qualified a trio of measures for the fall ballot, including one limiting eminent domain. Americans for Limited Government gave the group a $25,000 loan, according to newspaper reports, though the organization has refused to disclose its donors.

In May, Montanans in Action - formed in the least populated state in the union - donated $600,000 to the eminent-domain campaign in California, the nation's most populous state.

Rich denies that he is the man behind for Montanans in Action. "That is a completely separate group," he says, though the Montana organization's spokesman, Trevis Butcher, has close ties to Rich's Americans for Limited Government as the past chairman of the campaign to keep Montana's 8-year term limits.

There are also records of recent e-mails between Butcher and John Tillman, president of Americans for Limited Government, and Paul Jacobs, the only staffer listed at U.S. Term Limits other than Howard Rich.

Those records were obtained by Helena attorney Jonathan Motl, who is considering filing a complaint with the state's campaign finance commission to force the group to reveal its donors.

"I am working on that right now," says Motl.

Rich has ruffled some feathers in South Carolina politics as well, skirting the state's contribution limits with multiple donations to Gov. Mark Sanford. Since December, nine separate maximum donations of $3,500 have been made to the governor by individuals and businesses with ties to 73 Spring Street, New York, N.Y., where Rich's Fund for Democracy is headquartered. Rich is not among the declared donors.

Supporters of the eminent-domain movement acknowledge that Rich's money has played a role in the nationwide debate over property rights. But they say the issue is so important - and so popular - that the push to strengthen property owners' hand against the use of eminent domain would still be occurring without Rich's financial backing.

"Certainly he has provided the seed money to qualify these initiatives, but it would be a mistake not to recognize the tremendous grassroots appeal," says McClintock.

Bills to limit the scope of eminent domain have sailed through 27 state legislatures since the Supreme Court decision. And 43 of the 44 state legislatures that have convened since the ruling have at least considered legislation to limit the taking of private property, according to the National Conference of State Legislatures.

But opponents of the ballot-box eminent-domain measures, both in California and elsewhere, see Rich as a major - and negative - driving force.

"The ironic thing about what he is doing is he is as guilty of the same overzealous abuses that he accuses government of," says Fairbanks. "If this should pass, one of the consequences is that we are going to see lawsuit after lawsuit filed - and guess who is the loser in that? The California taxpayers, not Howard Rich."

Capitol Weekly News: http://www.capitolweekly.net

San Bernardino County voters OK tamer version of eminent domain measure: Los Angeles CA Times, 11/9/06

By Jonathan Abrams and Sara Lin

California voters rejected a statewide proposition to restrict the government's ability to seize private property, but voters in San Bernardino County approved a scaled-down version of the measure Tuesday.

Measure O, which prohibits the county from using eminent domain to take private land and transfer it to a private developer or other entity, passed by a wide margin.

"This isn't going to impede the county from improving streets and roads in any way," said Supervisor Dennis Hansberger, who supported the county initiative. "But it's also not going to allow people's land to be taken away and given to developers and, frankly, just making them richer."

Had state Proposition 90 also been approved, the sweeping state initiative on eminent domain would have taken precedence, and significantly increased government compensation to property owners, San Bernardino County officials said.

Instead, the new measure will apply in unincorporated areas of the county. Supervisors were concerned that the state proposition was too broad and would raise the price of land seized by eminent domain, thus limiting growth and revitalization projects.

Los Angeles CA Times: http://www.latimes.com

Mixed verdict nationwide on eminent-domain proposals: Sacramento CA Bee, 11/9/06

By John Hill

California and several other states that considered changes to private property rights delivered a mixed verdict Tuesday.

While voters in nine of 12 states approved measures to limit government use of eminent domain, California and two others rejected more ambitious proposals to compensate landowners when rules and regulations reduce property values.

Still, backers of California's Proposition 90 said the vote showed that such a measure could pass, and vowed to gather signatures to put it on the ballot in 2008.

"The bottom line is we're going to be back, better funded and stronger than before," said Kevin Spillane, a Proposition 90 campaign consultant.

Opponents said they would try to defuse such a move by getting the Legislature to address eminent domain changes, minus Proposition 90's requirement that landowners be compensated when any regulation or law impinges on property values.

"We think the Legislature is the place where this debate should occur," said Chris McKenzie, executive director of the League of California Cities.

Proposition 90 was narrowly defeated Tuesday, with 47.5 percent of voters in favor and 52.5 percent opposed. The measure would have prohibited governments from using the power of eminent domain to take property for use by a private developer.

And it would have required governments to compensate property owners when regulations and laws resulted in "substantial" economic losses. Opponents said this provision would have applied to everything from environmental rules to workplace protections.

Nine states passed so-called "property rights" measures, most of them barring governments from handing over property that they condemn to private developers.

The states were motivated by a U.S. Supreme Court decision, Kelo v. New London, that allowed a Connecticut city to condemn homes as part of a neighborhood revitalization project.

One of those states, Arizona, passed a law that went beyond eminent domain to also require property owners to be compensated if certain land-use laws reduced property values.

But two other states besides California, Washington and Idaho, rejected measures that addressed the issue of "regulatory takings."

Sacramento CA Bee: http://www.sacbee.com

Measure to restrict government power over private land being rejected: San Francisco CA Chronicle, 11/8/06

By Patrick Hoge

[California] Voters were poised Tuesday to reject Proposition 90, a measure that supporters said would stop the government from using eminent domain to take private property on behalf of developers, but which critics said would actually hobble land-use regulation.

The "Protect Our Homes Act" - one among a handful of similar efforts in various states - had 49.4 percent of the vote with 32.1 percent of precincts reporting.

Proponents said Prop. 90 was a necessary reaction to the June 2005 U.S. Supreme Court ruling that allowed New London, Conn., to seize the home of Susette Kelo and others so a developer could build a hotel, condominiums and commercial space on the site.

Critics countered that the court ruling had no bearing on California, and called Prop. 90 a "taxpayer trap." They said the measure would lead to lots of litigation and make it hard for cities to plan development.

"We are ahead, but there's still a lot of votes to be counted,'' said Tom Adams, president of the California League of Conservation Voters. "So far, it looks like the voters understand that Prop. 90 would hurt the environment and impose tremendous costs on taxpayers.''

The anti-Prop. 90 campaign drew support from an unusual assortment of players that included cities, the state's major environmental groups, builders, bankers and labor groups. Opponents raised about $12.45 million, compared with $3.77 million by proponents, according to the latest disclosure reports.

"We were outspent in total more than 3 to 1,'' said Kevin Spillane, a spokesman for the "yes'' campaign. "The opposition campaign was financed by special-interest money and based on blatant distortions and falsehoods."

The vast majority of the money in support came from groups led by or connected to conservative New York real estate investor Howie Rich, who has long supported candidates and measures favoring property rights, term limits, tax cuts and school vouchers.

Rich helped steer millions of dollars to similar property-rights measures in Arizona and Nevada, which appeared to be winning Tuesday night, and in Idaho and Washington, where they were losing. Other measures he supported in Missouri, Montana and Oklahoma were disqualified by courts. His money also flowed to initiatives promoting term limits and curbs on taxes and government spending.

Much of the criticism of Prop. 90 focused on language that would require public agencies to compensate property owners for "regulatory takings" - times when a government decision prevents a property owner from developing or using land. The measure would have amended the state Constitution to require the government to pay for any "substantial" loss in property value caused by new laws or rules, except ones dealing with public health and safety.

Though supporters denied it, the nonpartisan state Legislative Analyst's Office said the measure could affect more than land, potentially requiring compensation for rules governing such things as pollution, employment conditions, consumer protection and rent control.

Local redevelopment officials said limiting the use of eminent domain for projects such as shopping centers or hotels would make it more difficult to revitalize blighted areas.

Prop. 90 also could increase the price of property acquired through eminent domain, which critics said would make public works projects more costly.

San Francisco CA Chronicle: http://sfgate.com

Wal-Mart sues Hercules over eminent domain technicality: San Jose CA Mercury News, 11/8/06

By Tom Lochner

In what could be the first of a series of legal challenges, Wal-Mart has sued Hercules over the city's decision to invoke eminent domain to strip the retail giant of a Central Hercules lot near the waterfront.

The suit, filed in Contra Costa Superior Court in Martinez on Tuesday, argues that the City Council's May action authorizing the taking was illegal because of a technicality. It challenges the Hercules Redevelopment Agency's authority to invoke eminent domain at all, against any owner on any grounds, contending that authority lapsed in 1995, 12 years after the approval of the original redevelopment plan for the so-called Dynamite Project Area in December 1983.

But in September, the Hercules City Council, by ordinance, extended the redevelopment agency's eminent domain authority by 12 years. Wal-Mart wants a judge to declare the ordinance invalid.

"Defendants' after-the-fact attempt to resurrect the Agency's power of eminent domain is factually unsupported and legally improper," Wal-Mart's attorneys argue in the suit.

"Once it's expired, it can't be resurrected - that's their argument," Hercules City Attorney Mick Cabral said. "Our argument is, that's absurd."

"We can extend or revive the eminent domain authority at any time before the redevelopment plan itself terminates."

That will not happen before about 2031, Cabral estimated.

Wal-Mart owns the future Bayside Marketplace, a 17-1/4-acre lot off John Muir Parkway roughly midway between San Pablo Avenue and San Pablo Bay. A 2003 development agreement with the Lewis Group, which owned the property until it sold it to Wal-Mart late last year, sets a store size limit of 64,000, the city contends.

Wal-Mart has said the 64,000-square-foot figure is merely a guideline and that its project, which calls for other stores on the parcel, would fall within the total store space limit of 168,000 square feet for the entire parcel.

Earlier this year, Wal-Mart filed its latest, scaled-down application for a 99,000-square-foot big-box store and other smaller structures.

"Wal-Mart does not want to submit a plan that conforms with the development agreement we signed with Lewis," Cabral said. "They want to do it Wal-Mart style."

Wal-Mart also challenges the city's contention that its property is in a condition of "blight," a legal requirement for a decision to invoke eminent domain.

Cabral said the property is as blighted now as it was in 1983 at the time the redevelopment plan was approved.

Blight can be physical or economic in nature under state redevelopment law. The city contends Wal-Mart's property is economically blighted, in essence for lack of any economic activity.

"This is the first of what I believe will be many legal actions Wal-Mart will take in order to force its way into Hercules," Cabral said.

No court date has been set for the suit.

Steve Kirby of Friends of Hercules, a good-government advocacy group that opposed the Wal-Mart proposal, said he is not surprised at all that Wal-Mart sued.

"I think the city pretty much knew Wal-Mart was going to do this," Kirby said. "It's part of Wal-Mart's modus operandi. They'll argue a technicality. They'll spend millions of dollars. They'll drag it on. That's what Wal-Mart does."

Wal-Mart spokesman Kevin Loscotoff rejected the notion that Wal-Mart is unwanted in Hercules, except by "a vocal minority that's opposed."

"Hercules residents drive to our stores in Martinez, Vallejo and Fairfield every day," Loscotoff said. "They appreciate the savings that Wal-Mart brings to working families. We continue to be bolstered by those residents that want low prices, new jobs and sales tax revenues."

Commenting on the lawsuit, Loscotoff said, "It's unlawful to pass an ordinance to retroactively extend their authority to use eminent domain to seize our land."

San Jose CA Mercury News: http://www.mercurynews.com

Eminent domain restrictions approved in 9 states, rejected in 3: The Jurist, 11/8/06

By Jaime Jansen

Voters in nine US states approved ballot initiatives restricting the use of eminent domain in mid-term elections Tuesday, reacting strongly against the 2005 US Supreme Court Kelo v. New London decision, which held that private redevelopment conferring economic benefits on a community qualifies as a "public use" allowing local governments to expropriate private property under the Takings Clause of the Fifth Amendment.

Measures in Georgia, Nevada, and Oregon restricting the use of eminent domain for private projects passed with overwhelming approval, while voters in Florida, Michigan, New Hampshire, North Dakota, and South Carolina approved similar constitutional amendments by narrower margins. Arizona voters approved a measure that requires compensation for regulatory takings and prohibits the use of eminent domain for private projects.

Meanwhile, three states indirectly supported the Kelo decision by rejecting various eminent domain restrictions Tuesday. California voters narrowly rejected a measure that would have required compensation for regulatory takings and prohibited eminent domain for private development, but voters in Idaho overwhelmingly rejected a similar measure. Washington voters also rejected an initiative that would have required compensation for regulatory takings.

The Jurist: http://jurist.law.pitt.edu

Florida Voters Pass Eminent Domain Limit: Houston TX Chronicle, 11/8/06

By Kelli Kennedy, Associated Press

Florida residents resoundingly approved six permanent changes to the state constitution on Tuesday, covering everything from a demand to spend more on anti-smoking ads to tightening eminent domain.

... Amendment 8 ... bans the use of eminent domain to transfer property to private developers unless an exemption is approved by three-fifths votes in both houses of the Legislature.

With 80 percent of the expected vote counted, 69 percent backed the amendment with 31 percent against it.

After last year's U.S. Supreme Court ruling that gave governments eminent domain power to obtain property for private development, Florida became one of 30 states that have enacted laws limiting such seizures. Amendment 8 puts those restrictions into the state constitution.

Houston TX Chronicle: http://www.chron.com

N.D. Voters Restrict Eminent Domain: Houston TX Chronicle, 11/8/06

By Dave Kolpack, Associated Press

North Dakota residents voted Tuesday to limit the government's right to acquire private property.

Former attorney general Heidi Heitkamp was a prominent advocate for a proposal to restrict local governments from acquiring land for private economic development projects, known as eminent domain.

"This is great news for property owners and great news for what we believe to be the American way," Heitkamp said of the measure's success Tuesday.

Jerald Hjelmstad, assistant director of the North Dakota League of Cities, said the eminent domain vote was "disappointing, but not surprising." He said his group opposed the eminent domain measure because it would hurt cities in efforts to clean up blighted areas.

"It was an uphill battle," he said. "Local governments will just have to adjust accordingly and try to keep the negative consequences to a minimum."

Houston TX Chronicle: http://www.chron.com

Eminent Domain Limits Pass in Michigan: Houston TX Chronicle, 11/8/06

By Sven Gustafson, Associated Press

[Michigan] voters by a 4-1 margin approved a measure to prohibit governments from claiming eminent domain to seize private property for certain private economic development projects. With its passage, Proposal 4 enacts a 2004 Michigan Supreme Court decision into the state constitution.

Houston TX Chronicle: http://www.chron.com

Eminent domain reform demanded: Billings MT Gazette, 11/7/06

The Powder River Basin Resource Council passed a resolution at its annual meeting Saturday calling for a "substantial" rewrite of Wyoming's eminent domain laws.

Laurie Goodman, a member of the Wyoming Landowners Association, told the council that Wyoming's laws are "skewed to the taker," with landowners having little recourse against a company that wants to take land for private use.

Several Wyoming groups have called for changes in the state's eminent domain law since the U.S. Supreme Court last year allowed the city of New London, Conn., to condemn 12 older homes along the waterfront and turn them over to a developer who plans to build offices, a hotel and convention center.

Billings MT Gazette: http://www.billingsgazette.net

Eminent domain, right and wrong: The Advocate, Baton Rouge LA, 11/7/06


By Lewis Doherty III

... I have handled dozens of eminent domain (expropriation) cases during my tenure as a judge, and even employed procedures which expedited their resolution.

There is no question that where the necessity is established, eminent domain is appropriate for the taking of private property for the acquisition of schools, highways, public buildings and rights of way for public utilities.

However, the taking of private property, as authorized by the United States Supreme Court in the [New] London [CT] case, to be given to private developers under the guise of economic development merely for the purpose of increasing a government’s tax base, is manifestly wrong.

Fortunately, state legislatures such as ours have tried to put an end to this government grab bag.

Eminent domain is a severe remedy and should only be used for a truly public purpose. I do not believe the taking of private property and turning it over to private developers meets a valid public purpose.

The Advocate: http://www.2theadvocate.com/opinion

Lewis Doherty III is a Retired District Judge in Baton Rouge LA


Eminent domain pushback: Contra Costa CA Times, 11/5/06


By Roger Pilon

IN 12 STATES Tuesday, voters will get a rare chance to talk back to the Supreme Court.

Those are the states with measures on their ballots to protect property rights, sparked by the court's 2005 Kelo decision, which lets government condemn a person's property and give it to someone else who can make "better use" of it. In an instant, Americans across the country woke up to the realization that, as Justice Sandra Day O'Connor wrote in dissent, "The specter of condemnation hangs over all property."

To date, 30 states have enacted measures to restrain their power to condemn, and citizens have stepped in where legislatures have balked, placing initiatives on the ballots. Despite intense opposition from the powers who benefit from the status quo, these initiatives are doing well in the polls because they're tapping into a bedrock U.S. principle: the right of everyone to own and enjoy property.

Occasionally, of course, government needs to take private property for roads, schools, military bases and the like, or to facilitate private undertakings that serve the entire public - network industries such as railroads and electric and cable lines. That's why condemnations, through the power of eminent domain, are recognized by the Fifth Amendment's "takings clause." Known in the 18th century as the "despotic power," eminent domain is nonetheless twice restrained: The property must be taken for "public use" and the owner must receive "just compensation."

Unfortunately, owners are often not made whole. More recently, however, as in the Kelo case, they've had their property taken not simply for a public use but for some "public benefit," with the court's blessing, and that's opened the floodgates to what should be unconstitutional condemnations. Whole neighborhoods have been bulldozed to make way for "upscale" private developments. Not surprisingly, the poor and politically unconnected have suffered most.

Another abuse is closely related and arguably worse. Rather than condemn the whole property and transfer it to others - for which owners would have to be compensated, however poorly - government condemns legitimate uses through regulation, paying the owner nothing for the loss in value he suffers. Thus, the public goods that result are provided on the cheap - at no cost to taxpayers. Government denies owners the use of their property so the rest of us can enjoy lovely views, wildlife habitat and more. The public enjoys the goods, but the owner bears the costs.

The property rights movement has been building for years, but the Kelo decision lighted the fuse. In some respects, the states with measures on the November ballot are taking their cue from Oregon, which for more than 30 years had the most restrictive statewide land-use regulations in the nation. Fed up with the restrictions, in 2004 voters overwhelmingly passed a retroactive measure that requires the relevant agencies to either compensate owners for their losses or waive the restrictions. Not surprisingly, most have chosen the latter course.

When made to pay for the goods it otherwise acquires through regulation, "the public," it seems, has second thoughts.

Unlike Oregon's measure, however, California's current Proposition 90 is not retroactive. When vocal opponents scream, therefore, that it amounts to a raid on the taxpayers, they are wrong in both theory and fact. Wrong in theory because it hardly counts as a "raid" to make the public pay for the goods it wants. Indeed, it is to prevent a raid on individual owners that the takings clause was written in the first place. Wrong in fact, because the Oregon experience shows that almost all the claims filed to date are for past restrictions. Once a fair regime is in place, governments think twice before they impose new restrictions on owners, knowing that the taxpayers are going to have to pay for the goods thus acquired.

Proposition 90 opponents' late devotion to taxpayers is nothing new, of course. The in-bed-with-government establishment is trotting out the same arguments it has always used against propositions aimed at limiting government. If the measure passes, it contends, public services will disappear and life as we know it will end.

In the end, however, simple fairness should decide these matters. It's wrong for government to impose the costs of public goods on individual owners. And it's wrong to take the homes and businesses of people just because government thinks someone else can make better use of their property. If someone else wants the property badly enough, there's a fair way to get it: Pay for it. That's the American way. If it's right for individuals, it's right for government, too.

Contra Costa CA Times: http://www.contracostatimes.com

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato's Center for Constitutional Studies: http://www.cato.org

Prop. 4 would end use of eminent domain in state: Grand Haven MI Tribune, 11/3/06

By Sven Gustafson, Associated Press

It's received little fanfare, but a Nov. 7 ballot proposal aims to set strict limits on government's ability to claim privately owned property.

Proposal 4 would amend the state constitution to end the use of eminent domain for private economic development purposes. Traditionally, governments have claimed eminent domain to acquire private property for public purposes, such as building roads or schools.

The proposal also would require governments to provide compensation worth 125 percent of fair market value when condemning properties.

The measure is largely a reaction to a U.S. Supreme Court case in 2005 that pitted several families against the city of New London, Conn., which wanted to condemn their homes to allow a pharmaceutical facility to expand.

In that case, a divided court permitted the condemnation because it found a public benefit in the growth of jobs and tax revenue that would result from the project. But the court said individual states were free to make their own laws limiting the practice.

"That struck me and a lot of my constituents and a lot of the residents of the state of Michigan as going against the basic property rights that have been established by the state and our nation," said state Sen. Tony Stamas, R-Midland. He introduced the joint resolution late in 2005 that placed the measure on the ballot.

Michigan has a history with the issue.

Most famously, the state Supreme Court in 1981 permitted the use of eminent domain in Poletown, the neighborhood that straddled Detroit and Hamtramck, to allow General Motors Corp. to build a new plant that it said would employ 6,000 workers. The court ruled at the time that the promised economic benefits to each city comprised a public benefit.

The decision forced the relocation of about 3,500 residents and paved the way for the demolition of roughly 1,500 homes and businesses, several churches and a hospital.

But in 2004, the Michigan Supreme Court reversed its Poletown decision in a case pitting a property owner against Wayne County, which wanted to clear land to make way for a commercial and industrial project near Detroit Metropolitan Airport. The state House and Senate have since passed legislation intended to place the high court's ruling into state statute and compliment the proposed constitutional amendment.

And that's the rub for some critics of the proposal, who say a constitutional amendment simply isn't needed.

"You don't put a constitutional amendment, which is serious business, on the ballot when you already agree with the law as it sits today," said former Grand Rapids Mayor John Logie, who has argued condemnation cases for property owners and governments for more than three decades as an attorney. He says the amendment's language is too broad.

Logie and others, including Arnold Weinfeld of the Michigan Municipal League, say the proposal would effectively make it more expensive for local municipalities to redevelop blighted or contaminated areas. Eminent domain was used to build parts of downtown Grand Rapids, they note, as well as Comerica Park and Ford Field in Detroit.

"I think you can point to many examples where it has been a useful tool for communities as they go about the business of redevelopment," said Weinfeld, director of state and federal affairs for the Municipal League.

Stamas said the proposed constitutional amendment would guarantee that a future court couldn't adopt the earlier Poletown decision. He said the proposal also would tighten the definition of blighted property.

"We wanted to make very clear that the burden of proof is on the government and give the property owners every protection that is possible," he said.

The measure enjoys support from the Protect Our Property Rights Coalition, which includes organizations such as the Michigan Association of Realtors and the National Federation of Businesses. And legislation to adopt the 2004 state Supreme Court ruling has enjoyed broad bipartisan support.

Grand Haven MI Tribune: http://www.grandhaventribune.com

Council overrides Mayor’s eminent domain, demolition vetoes: Amesbury MA News, 11/3/06

By Kendra Kelley

The [Amesbury] Municipal Council swiftly struck down two mayoral vetoes in a special meeting that lasted less than 20 minutes Monday night. The council affirmed its decisions concerning an act to limit eminent domain and an ordinance to revise the historic demolition bylaw.

Mayor Thatcher Kezer argued that the eminent domain language runs counter to Massachusetts General Law....

The council ... overrode [the] mayoral veto on an act to limit the use of eminent domain. Kezer called his changes to the bill "corrective language" to rectify what he saw as a conflict with the Town Charter. Kezer said he did not object to the goal of protecting private property from eminent domain for non-public use, but he did object to the portion of the bill that seeks to limit the power of eminent domain to use by the council.

"For the purpose of sewer, water, roads and drainage, the power of eminent domain is vested in the Mayor through the Amesbury Town Charter," he wrote in a formal letter to the council. Kezer said because the bill seeks to centralize power with the council it runs contrary to the charter and is in violation of Massachusetts General Law. At last week’s council meeting the council voted against adopting a set of changes offered by the mayor that outlined mayoral powers of eminent domain.

Councilor Alison Lindstrom, a sponsor of the bill, said the act had been sufficiently debated. "This has been up for debate and discussion for 6 months," she said, adding that town "precedent" has been to let the council use eminent domain. She added that the language of the bill would allow state lawmakers to address any conflicts in language concerning town laws and state regulations. "If it is illegal either the senate or the house council will know," she said.

Councilor Roger Benson said he supported the bill when it was approved, but that he was disappointed the council did not have more time to address the veto. "I would really like to have a conversation in light of what they mayor has brought up," he said. The final vote was 6 to 3 with councilors Benson, King and Robert Lavoie voting against a veto override.

Amesbury MA News: http://www2.townonline.com/amesbury

Prop. 207 changes eminent domain: Tucson AZ Citizen, 11/3/06

By Brad Poole

On Nov. 7, voters will be asked to approve a proposition that would change the way governments can take private property for public use.

Proposition 207 would define public use as use by the general public or public agencies, use for utilities, acquisition to eliminate a safety or health threat or acquisition of abandoned property. The measure would block taking of property for economic development, require governments to pay legal fees for property owners who successfully fight eminent domain - the taking of private property for public use - and compensate owners whose property values were decreased by land-use laws.

Question: Don't state law and the state constitution already protect property rights?
Answer: State law allows governments to take land for the public good, including for economic development, provided the government gives property owners fair market value for the land. Proposition 207 would halt taking of land for economic development and require governments to compensate property owners if a land-use law lowers property values. Compensation would be allowed only if the land-use law regulates your land. No compensation would be allowed if a land-use change on a neighboring property reduces your property value.

Q. How would Proposition 207 affect development around military bases, including Davis-Monthan Air Force Base?
A. The measure's opponents say it would prevent land-use restrictions aimed at protecting D-M from encroaching development. The measure would not prevent such restrictions, but restrictions around D-M would likely lead to claims of reduced property values. Such claims could make land-use restrictions costly to local governments.

Backers say Proposition 207 would allow such land-use codes because military defense is a public use, and compensation aspects of the measure would be avoided near D-M because of exemptions that would apply.

Q. How would Proposition 207 affect southern Arizona's Regional Transportation Plan?
A. Opponents say the measure would block land-use restrictions that would be required along major routes in the plan. Again, the measure would not block land-use restrictions, but it could lead to claims of reduced property values.

Backers say Proposition 207 would not apply because it allows taking of land and blocks compensation for decreased property values for "rules and regulations relating to . . . transportation or traffic control."

Q. How would the proposition affect the Sonoran Desert Conservation Plan?
A. Opponents say the measure would block transfer of development rights from property owners to others, thereby blocking implementation of much of the plan aimed at restricting development on environmentally sensitive land.

Backers say Proposition 207 offers a needed requirement to compensate owners whose property is devalued by land-use restrictions in the conservation plan. Under Proposition 207, developers could claim reduced property value if the conservation plan restricted their land to fewer homes than they wanted on a property.

Tucson AZ Citizen: http://www.tucsoncitizen.com

Tempers flare over eminent domain: Hanover PA Evening Sun, 11/3/06

The battle rages on between citizens of Tyrone Township and proponents of a natural-gas compressor station planned near Oxford Road and Route 234

By Tim Pratt

About 30 people attended an informational meeting and question-and-answer session Thursday at the Heidlersburg Volunteer Fire Co.

While a similar public meeting in September focused on the safety of the proposed station, tempers flared Thursday over the prospect of property owners having their land seized by eminent domain for the compressor's power lines.

Some citizens were concerned that power lines needed to power the station would encroach on their property. And they were afraid the 100-foot right of way needed for the lines would result in their land being bought or seized.

"Tell me the difference between eminent domain and a bully in school taking my daughter's lunch money," said Gynn Scott of Oxford Road, speaking to representatives from Duke Energy, the company proposing the station.

"I'm asking you guys on a personal level," Scott said. "How would you feel if somebody came to you and said, 'We're going to give you X amount of money for your land and if you don't like it, we're going to take it'?"

The power lines could go through a portion of Scott's property, as well as the nearby Breighner Estate.

Barbara MacDonald of Lancaster, executor of the Breighner Estate, also made a passionate plea against the possible property seizure.

Supervisor Galen Smith echoed the pair's concerns and asked the energy company to consider a different location for the lines.

"Do you guys realize what you're doing to their property?" Smith asked Duke officials. "You don't want a power line on your right of way, but you're going to take land from them and make their land useless."

Duke officials said if power lines were to be placed over their existing pipeline right of way, the lines could interfere with the pipeline and compressor station's electrical equipment. But they said they are only responsible for the compressor station, not the power lines.

Paul Royer of Duke Energy said using eminent domain to acquire the properties would be "a last resort."

Duke officials said a compressor station is needed every 50 to 70 miles in order to boost pressure and deliver natural gas from Texas to New Jersey and numerous sites throughout the Northeast.

Officials said the existing natural-gas pipelines are losing pressure because of friction in the pipes and increases in the number of locations the pipes are accessed. The nearest compressors are in Chambersburg and Marietta.

According to Duke Energy representatives, Tyrone Township is a prime location for such a compressor.

But Russ Raub of Aspers and many others at the meeting didn't feel that way.

Raub said that the energy company should consider finding a new location, such as an industrial site that is no longer in use.

"The selected site is located in an agricultural-preservation district," Raub said. "An industrial site is not compatible with an agricultural-preservation district. None of the stated accessory uses for land in an agricultural-preservation district includes an industrial site."

And while many were concerned with the safety of the station, Duke officials said the company has never had an explosion at one of its compressor stations. The energy company spoke of the emergency shut-down procedure that would take place if the station were to have a gas leak.

But Dennis Brownawell of White Church Road said the loud noise associated with an emergency shutdown is one of the main reasons he opposes the project. Brownawell has horses on his property and gives riding lessons.

"If there is ever an emergency shut down, you'll hear it short and quick," he said. "It alerts and frightens an animal."

"I will not subject my family or any other human being to what could happen if there is an accident and an emergency shutdown," he added.

Duke Energy is waiting on the necessary approvals from the Federal Energy Regulatory Commission before beginning construction at the 40-acre property. They also will need to get the land rezoned and get a land-development plan approved by the township.

There are also countless other approvals needed before the compressor station is built, including approvals by the Pennsylvania Department of Environmental Protection, the Adams County Soil and Water Conservation District and the Pennsylvania Historic Museum Commission.

Spokesman John Sheridan said he hopes construction will begin on the site this spring with an in-service date of November 2007.

Hanover PA Evening Sun: http://www.eveningsun.com