Posted on 02/09/2006 11:02:09 AM PST by NormsRevenge
California’s property owners, incensed by the U.S. Supreme Court’s recent Kelo decision, are going on the offensive with a ballot initiative that aims to limit the government’s sweeping eminent domain powers. But powerful developers who benefit from the status quo are sure to put up a fight.
The California Property Owners Protection Act would eliminate the state and local governments’ ability to take personal property for non-public uses. Public uses would be strictly defined as the building of roads, parks, and public edifices. Non-public uses include the transferring of an individual’s land to another person or private entity.
The initiative, proposed by the Howard Jarvis Taxpayers Association and State Senator Tom McClintock, would counteract the U.S. Supreme Court’s unpopular decision in Kelo v. New London, Connecticut. The court permitted the city’s redevelopment agency to remove several homeowners from their property so that private developers can turn the site into a hotel and retail center. The 5-4 majority agreed that the city’s desire for more tax revenue was a sufficient enough reason for the seizure.
“Promoting economic development is a traditional and long accepted function of government,” wrote Justice John Paul Stevens for the majority. “Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties.”
This interpretation deviates from the original meaning of the “takings” clause in the U.S. Constitution. That clause, found in the Fifth Amendment, states that private property cannot be taken for public use without just compensation. The framers viewed the term “public use” to mean public goods exclusively. To take land from someone and give it to another person or group the framers rightly construed as theft. Samuel Chase, one of the first justices on the U.S. Supreme Court, echoed this sentiment in 1798.
“A law that takes property from A and gives it to B, it is against all reason and justice, for a people to entrust a legislature with such powers,” he wrote.
Twentieth-century rulings, unfortunately, redefined “public use” to include the redevelopment of “blighted” areas—swaths of land that are considered economically depressed. Cities saw eminent domain as a tool to reinvent themselves but too often use eminent domain as an instrument of plunder at the behest of politically connected companies.
California City in Kern County, for example, declared 15,000 acres of undeveloped land as a “blighted” area in order to turn the property over to the Hyundai car corporation. According to the Pacific Legal Foundation, between 1998 and 2003 there were 223 instances in California in which governments used eminent domain to take homes and businesses from individuals and families and transfer them to private developers. Such disregard for property rights is troubling. Justice Sandra Day O’Connor conveyed this fear in her Kelo dissent.
“The specter of condemnation hangs over all property," she said. "Nothing is to prevent the State from replacing a Motel 6 with a Ritz Carlton, any home with a shopping mall, any farm with a factory.”
With the Kelo decision, the U.S. Supreme Court damaged a fundamental building block of American life.
Fortunately, there was one bright note to the decision: it permitted individual states to place limits on the use of eminent domain. Florida, Illinois, Washington, and seven other states forbid the use of eminent domain for private development. The Golden State can join their ranks, and restore America’s foundation of individual property rights, by adopting the California Property Owners Protection Act. The measure awaits title and summary from the Attorney General, and will soon be ready for signature collection.
Which is exactly why this is going to be an initiative, as the first sentence of the article said. This should be a clue to all states to begin working on measures to limit state and local government's ability to sieze properties.
If McClintock is mixed up in this, then it should be a well-written measure. (It drives me nuts when potential law is badly written -- you're always stuck wondering whether or not to vote for what is a good idea but potentially a bad law.) They'll have my signature!
PING!
McClintock Ping List.
Please freepmail me if you want on or off this list
But these same folks had no issue with the limitation of use of private property in the form of smoking bans. The Kelo decision is just the logical conclusion to their beloved smoking bans.
McClintock introduced a constitutional amendment last August (SCA 15) which appears to have gone through some revision. He then introduced a new bill (SCA 20) last month. Filing the initiative may motivate the legislature to act; if not, it's a nice back-up. The full text of SCA 20 can be read Here
Grow up troll
That clause, found in the Fifth Amendment, states that private property cannot be taken for public use without just compensation.
The way governments have gotten around this has been to declare private property as public places, as opposed to places of public accomodation.
BTTT
Prediction: "Arnold of the Wet Thumb in the Air" will get behind the initiative to gain political points, never mind that he signed one of the biggest land grab bills ever seen--the one for the Sierra Conservancy, another magnificent deal for big developers and the environmental wackos but a very poor deal for property owners and the public.
WHEREAS, It is the intent of the Legislature that private property shall not be taken or damaged for the use, exploitation, or management of any private party, including, but not limited to, the use, exploitation, or management of property taken or damaged by a corporation or other business entity for private profit
Does the elimination of this section appear convenient to any new proposals?
As Republicus2001 pointed out, elimination of that clause will allow the opportunity for a fascist precept to enter our public code.
The three of you not only are sniffing out all the bad stuff... Your tellin 'em where to stuff it!!!
I love it!!!
The phrase "intent of the Legislature" is not consistent with the phrase that follows "shall not be taken" because the former phrase puts into doubt the use of the mandatory prohibition "shall not". That is, use of the word "intent" can be taken as permissive, thus giving wiggle room to the bad guys despite the mandatory nature of the following phrase.
Perhaps this is resolved by the drafting conventions that must be used for bills drafted by the legislative committees. Absent that, or pertinent case law settling the question of such prefatory phrases used in conjunction with following mandatory phrases, I remain very skeptical that this language would have been all that protective in the first place.
In other words, the language excised from ACA15 was probably a good move, but we would have to review the entirety of each bill against the other to understand what the substantive differences are.
All of that aside, I do trust Tom. He's not perfect, but I trust him to do the right thing.
(c) Notwithstanding these clear constitutional guarantees, state and federal courts have not protected these rights from encroachment by state and local government through the exercise of their powers to take private property for the use or gain of another private owner or owners.And this part does attempt to define "public use" with some parameters. :
(a) Private property may be taken or damaged only for a stated public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property shall not be taken or damaged without the consent of the owner for purposes of economic development, increasing tax revenue, or for any other private use, nor for maintaining the present use by a different owner....They have softened up some other things that Tom had in the original. For example, his original version required a judicial determination before taking which has been deleted. From SCA 15:(b) Property taken by eminent domain shall be owned and occupied by the condemnor, or by another governmental agency by agreement with the condemnor, or leased to entities that are regulated by the Public Utilities Commission. All property that is taken by eminent domain shall be used only for the public use stated at the time of the taking, except for limited purposes, public or private, that are incidental to that use.
...provide that private property may be taken or damaged by eminent domain proceedings only for a stated public use and only upon an independent judicial determination on the evidence that the condemnor has proven that no reasonable alternative exists.Also in the original, if the State acquired property it later did not need, the owner (or his heirs) could reacquire the property at the amount he was compensated or Fair Market Value, whichever was less. Now, the language says only FMV and the provision for heirs has been deleted.
Shoulda pinged you to the above.
No harm, no foul...
It is my considered opinion that the language was modified, not either to enhance or degrade individual protections, but rather to avoid public embarrassment to the CRP when the text of a Republican sponsored legislative referendum highlighted obvious conflicts with proposals that were on the administrative burner, not known by the Senator in August, but known to the Senator in December.
As to trusting the Senator. The Senator has shown on at least two prior occasions that he is willing to tolerate the advance of liberalism if it immediately benefits the CRP. I submit that the word respect is more appropriate when used to describe a relationship with any politician.
I can only add that I don't trust any politician but I respect them all.
You will note that my trust was qualified by the preceeding "He's not perfect..." and also applies only to this specific piece of legislation. I did not say that I trust him to always do the right thing all the time. For the same reasons as yours.
"I can only add that I don't trust any politician but I respect them all."
As for me, I trust only a very few to do the right thing most of the time, at least on the bedrock conservative issues. By no means do I respect all politicians--the "respect" group is only a little larger than the "trust" group. As a class, it's a rather large collection of self serving crapweasels whose primary goal is self enrichment and the acquisition of more power.
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