Overreacting On Eminent Domain

Opinion

By Michael Looney
Susette Kelo is gone but not forgotten.

The New London woman and some neighbors lost their battle before the U.S. Supreme Court to save their homes in the city's Fort Trumbull neighborhood. But since the high-profile Kelo v. New London case was decided in June 2005, numerous legislative actions and ballot initiatives designed to limit and redefine the government's eminent domain power have been proposed in states from New Hampshire to California.

Some didn't pass and some did (Connecticut's new law narrows, but does not prohibit, the use of eminent domain for economic development). The states that passed laws restricting the ability of state or local governments from seizing a person's home for economic development purposes — the issue raised in the Kelo decision — may have created unforeseen but far-reaching impacts for zoning and urban planning.

One clear example of this is Proposition 207 in Arizona.

Proposition 207 passed as a statewide Arizona ballot initiative in 2006 with the official title of Private Property Rights Protection Act, garnering 65 percent of the vote in the process. Ostensibly, its intent was to limit government's eminent domain power by redefining "public use" to specifically exclude "economic development" from the definition.

The law has other provisions, one of which entitles property owners to seek just compensation for the reduction of "the existing rights to use, divide, sell or possess private real property" that result from the application of any land-use regulation.

While certain regulations of land use such as fire codes, building codes and health codes were exempted from this clause, land-use tools such as zoning regulations were left unprotected.

This has triggered a contentious debate. Opponents of Proposition 207 say the legislation has severely limited not only municipal zoning powers, but also other de facto forms of land-use regulation such as the formation of historic districts.

Proponents insist the new law has not limited governmental land-use powers, but has simply ensured that property owners are compensated for a wider range of government actions that may hurt property values.

Regardless of who is right, Proposition 207 has had immediate planning and zoning impacts that have taken many observers by surprise. Relatively straightforward municipal actions such as rezoning an area of a city have become complex exercises where individual property owners must consent to the municipality's action.

If an owner does not consent and the municipality moves forward with the proposed action, the municipality runs the risk of the aggrieved property owner filing a lawsuit claiming loss of property value and demanding compensation.

Nervous municipalities across Arizona have quickly resorted to obtaining individual property owner signatures on "Prop 207 waivers," which the law allows, to protect themselves from potential lawsuits. However, acquiring these signatures can be a daunting task; for example, the creation of a special business district in Phoenix may eventually require 1,300 individual landowners to sign such waivers.

The potential impacts of Proposition 207 have already significantly changed the plans for historic districts in Phoenix, Tempe and Flagstaff, as well as several zoning and urban design initiatives. Municipalities have become so concerned about potential legal battles that they are having property owners sign Prop 207 waivers for even very minor zoning and planning actions.

While the debate between private property rights and government land-use regulation will continue indefinitely, it is important to question how well the public is being served by legislation such as Proposition 207.

The law gives property owners greater protection of their rights to just compensation. Most people, regardless of their political or ideological leaning, would agree that protection of private property rights is a positive objective.

However, the public costs associated with such legislation often gets short shrift. While an individual property has its value protected, there is no accounting for the loss to communities from stalled historic preservation efforts, lack of orderly zoning districts and incongruous urban design. The inherent value of these public goods, which are often much more difficult (if not impossible) to quantify than individual property value impacts, should at least have some calculus in the just compensation debate.

The protection of private property rights is a cornerstone of our American democratic system of government; it is articulated in the Fifth Amendment of the Constitution. However, as the enactment of Proposition 207 illustrates, the expansion of property protections can have a substantial impact on the public realm. One is left to ponder how society can best balance the private and public interests involved in land-use laws.

The turmoil stemming from laws such as Proposition 207 can best be prevented by engaging in more thoughtful debate and public discourse on eminent domain and zoning powers, rather than rushing through ballot initiatives on a wave of popular discontent. When our laws create situations which were not intended, it is the legislative process, not the law, that is flawed.

---

Hartford CT Courant: http://www.courant.com

Michael Looney is a senior associate with Harrall-Michalowski Associates Inc., a planning and development consulting firm in Hamden: http://www.hmaplan.com