To take, or not to take? Telluride CO Daily Planet, 2/4/07

By Pat Healy

About three weeks from today, a rural Colorado jury will slap a price tag on the 570-acre Valley Floor property, capping a massive eminent-domain taking. But across the country, battles rage over how much power governments should have to seize private land.

And right now, private-property activists are riding a cresting wave.

They are leading a backlash against eminent domain in state capitals, on local ballots and in the press, fighting to limit local governments from condemning private land and taking it for public use.

The Virginia-based Institute for Justice calls abuses of eminent domain a “national plague.” Colorado has passed a law restricting the use of eminent domain. This November, voters in Arizona passed a ballot measure that puts strict limits on the use of eminent domain and gives affected property owners more power in compensation.

“What we’re hearing is an overreaction,” said Lora Lucero, an attorney with the American Planning Association. “A lot has happened, and it’s mostly happening in the state legislatures.”

To find the source of this backblow, head east, to the northern shores of the Long Island Sound and the port town of New London, Conn. Head right to the doorstep of Susette Kelo’s pink wooden house.

In February 2005, the Supreme Court ruled that New London could condemn the modest homes of Kelo and her neighbors to build townhouses, a hotel and shopping center. The town argued that it could take the land because taxes generated by economic development would ultimately serve a public good.

But the Kelo ruling sparked a political landslide in towns across the country, property lawyers said. Here, the government was not grabbing land to build a highway or public hospital. It was condemning some private homes as blighted, then selling the land to build upscale private developments.

The power of eminent domain flows from the Fifth Amendment to the Constitution. Known as the “takings clause,” the amendment says that private land cannot be taken for “public use without just compensation.”

Using that power, governments have seized land to build parks and interstates, erect electric towers and thread water mains under the ground.

But homeowners across the country saw Kelo as a stark threat to their property rights, planners and lawyers said. The case broadcast eminent domain into the public imagination like the Massachusetts Supreme Court had done with gay marriage a year earlier.

Legislatures in 45 states took up bills to limit eminent domain.

Twenty-seven states signed those into law. The laws vary, but many forbid cities from seizing private property for private development or to generate taxes. Others went further, prohibiting governments from using eminent domain to spark economic development.

Voters in at least nine states passed ballot measures that put additional limits on eminent domain. State supreme courts in Michigan and Ohio made it harder for governments to take private homes. And state legislatures overrode vetoes of eminent-domain reform bills.

In Colorado, a proposed amendment to the state constitution that would have strictly limited eminent-domain powers sunk last spring before it could reach a vote. But a law passed last June says that governments have to provide “clear and convincing evidence” that a taking is necessary to eliminate blight.

“It puts the burden on the courts to see whether there’s truly blight,” said Bob Hoban, a Denver lawyer who helped draft the Colorado bill, and who represents property owners. “That was a big improvement in terms of property rights. It requires the courts to take a closer look.”

Hoban said he has dealt with three eminent domain cases since the Colorado law was passed. In all three, the government seized the property it wanted, but homeowners were paid suitably to relocate, Hoban said.

Hoban said the state Senate will introduce a bill this year that forbids governments from condemning underdeveloped land for open-space purposes unless the land will be used as a park or agricultural terrain. In the past, Hoban said, governments have taken land for open-space uses, and then built on it.

Despite the limits on government’s power to condemn land, Lucero said she thinks the pendulum will eventually swing back if governments become unable to redevelop blighted areas in urban cores.

“I think they’re going to revisit in five or six years and say, maybe we’re going to need to give this back to the community,” she said.

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