Posted on 06/24/2005 7:54:55 AM PDT by JCEccles
Utah Gov. Jon Huntsman Jr. (R) on March 17 signed into law Senate Bill 184, effectively preventing the exercise of eminent domain authority by redevelopment agencies, which otherwise had the power to transfer land from one private entity to another. Local governments may still use eminent domain for more traditionally defined and understood "public purposes."
First State Legislature to Act
Utah appears to be the first state to take legislative action to curb the use of eminent domain by local governments. The use of eminent domain by local governments has grown over the past 30 years as cities have taken private property from one owner to give or sell to another private owner whose proposed use promises increased tax revenue or other economic benefits.
The Michigan supreme court ended the practice there in July 2004 by reversing the infamous 1981 Poletown decision, which had allowed a Michigan city to remove more than a thousand private homeowners from land that was then given to General Motors.
The U.S. Supreme Court is considering a similar case brought by Susette Kelo against the New London Development Corporation, created by the city of New London, Connecticut. New London is trying to use its eminent domain power to take Kelo's home to give or sell to a private developer.
Economic Benefits Insufficient
As in Utah, mayors and city planners across the nation contend economic development is a sufficient "public use" to satisfy the requirement of the Fifth Amendment. Until the Poletown reversal in Michigan, courts generally held in favor of the cities. The U.S. Supreme Court's decision in Kelo will have much broader application than the Michigan decision did. City planners and property rights advocates alike eagerly await the court's decision, expected in June.
Utah's legislation takes the matter out of the courts, by statute placing a higher value on the private property rights of individuals than a city's desire to increase tax revenues. Local politicians in Utah were outmaneuvered by local citizens, who organized and convinced their state legislators to take action to protect property rights.
Municipal Officials Strongly Opposed
While popular among property owners, SB 184 faced stiff opposition from municipal officials in the state. "We feel strongly that this bill not only robs local government leaders of a critical economic development tool but sends the wrong message to business leaders nationwide about the climate in Utah for new business growth," argued Centerville Mayor Michael Deamer in a letter released shortly before Huntsman signed the bill into law.
"The powers of eminent domain simply should not be used when we're talking about private development," State Sen. Curtis Bramble (R-Provo) countered.
"I'm seeing prime commercial ground that would be developed regardless of [eminent domain seizures], and we turn around and give developers the tax increment. Why are we doing that?" Bramble asked.
Trend Foreseen
"The legislators of the State of Utah should be commended for taking the federal and state constitutions seriously," Sterling Burnett, senior fellow with the National Center for Policy Analysis, said. "It is always suspicious when the government takes property in the first place, but when it does so there must be a public purpose for its actions. It is not a legitimate public purpose to use government to take property from one private individual and simply give it to another.
"There must be limits to government playing fast and loose with eminent domain powers that have the potential to dramatically impact someone's life," Burnett said.
"It's one thing to take land--with just compensation--for the building of a road or some other public purpose," said Burnett. "It's another thing altogether to do this for some notion of central planning or mere wealth maximization. People should not have to sell their own property unless they want to or unless there is some pressing public purpose. Increasing the city's tax base merely for its own purpose is neither morally nor constitutionally justified.
"I wouldn't be surprised to see this become a state-by-state trend," Burnett predicted.
Supreme Court Poised to Intervene
The Utah bill is in many ways a prelude to the issue soon to be decided in the federal courts. In the Kelo case, the Supreme Court is deciding whether a local government can use its eminent domain power to seize property from one private party and transfer it to another private party. The seven plaintiffs in Kelo are property owners whose homes and small businesses were "condemned" by the city of New London solely for the purpose of helping a prospective developer acquire 90 acres of land.
According to New London officials, condemnation and taking of the property by eminent domain is necessary not because the property is uncared-for or a nuisance, but because the new development would support more jobs and create more city tax revenues than the current homes and small businesses.
According to Alex Epstein, a fellow at the Ayn Rand Institute, "This type of justification was given more than 10,000 times between 1998 and 2002, and across 41 states, to use eminent domain (or its threat) to seize private property. The attitude behind these seizures was epitomized by a Lancaster, California city attorney explaining why a 99¢ Only store should be condemned to make way for a Costco: '99 Cents produces less than $40,000 [a year] in sales taxes, and Costco was producing more than $400,000. You tell me, which was more important?'"
As reported by Epstein, Institute for Justice attorney Dana Berliner put the issue in more personal terms. "If jobs and taxes can be a justification for taking someone's home or business, then no property in America is safe. Anyone's home can create more jobs if it is replaced by a business, and any small business can generate greater taxes if replaced by a bigger one."
Matthew Dery, one of the Kelo plaintiffs, added, "People who've never experienced this sort of treatment at the hands of the government should realize that this could happen to them. You take for granted that, in America, you own your property until you choose to sell it, but that's not the way it is in New London, or in Connecticut."
[Mman] - No. SCOTUS has ruled that government has the Constitutional power to exercise Eminent Domain broadly. However, the Constitution is a floor, not a ceiling, when it comes to rights.
Scotus ruled that there is no constitutional floor under "public use"; -- that localities can simply confiscate property for the 'public good'.
Individual states can pass laws that grant citizens more rights than are in the Constitution. An individual state, for example, could pass a law that completely banned the use of Eminent Domain by that state.
Or that, conversely - under the same concept, they could simply 'pass a law' to confiscate property for the public good, disregarding the constitutional prohibitions of the 10th Amendment.
This outrageous decision reinforces the democratic 'majority rules' view of our Constitution, and ignores all it's republican principles of protecting individual inalienable rights.
I don't understand your reasoning.
The use of "public benefit" to argue property cases opens up a whole new can of worms.
Public benefit would open property to endless abuse under a doctrine of the common good. Public benefit could mean anything, to anyone, at anytime. Public benefit appears to be nothing more than the American version of the Marxist "common good."
Under the common good, or public benefit, the good of the group would constantly trump the rights of the individual. Group rights or public good are rampant in socialist/totalitarian governments.
On the other hand, public use severely restricts the condemnation of land under eminent domain. Public use restricts the seizure of property to things like schools or roads. In the USSC decision the court clearly, and wrongly in my opinion, used the concept of "common good" to allow the seizure of private property. It's certainly not a "public use" to seize property and give it to a developer to build an office or a factory. The public cannot use a factory or office.
I'd like to see your reasoning in using "public benefit" to fight property rights cases.
Hmm. I am inclined to respond that I can see no conceivable way for the Supreme Court, regardless of makeup, to strike down the Utah legislation under ANY theory. But then, like a cartoon mouse painting an exit hole on a wall to escape a cat, the Supreme Court has been known to come up with real surprises (Roe v. Wade, for instance).
I agree with you for far more reasons that the Kelo decision that it is imperative to replace the liberal supreme court justices who gave us the Kelo decision with justices of a more libertarian (in a property sense) bent. Janice Rogers Brown would be an excellent replacement.
It should also be kept in mind that the Kelo decision concerned a local taking, not a federal taking. Because of the supremacy clause no state legislation can trump a federal taking. Federal takings will have to addressed on their own terms.
I agree. And I think there is support on both sides of the aisle for this.
I'm telling you that the private use argument isn't working, it isn't a winner. Now you can complain that the alternative is bad, but you sure aren't winning with the pitcher ya got. Time to change pitchers.
Ok, that's good to know. Any relation to Marriner Eccles, by the way?
What big city has rent control other than NYC?
Frank another interesting article relevant to our discussion.
Interesting that we take the EXACT same view of this development. But I'll bet you get less flack for it. LoL.
I agree. Get those constitutions amended.
It will have not effect on federal projects. State law cannot countervene federal.
The issue is how much leeway should the states and the citizens in those states have in setting their own course without interference by the federal government? There has been constant tension on this point throughout our history. It is a very complicated issue.
In the aftermath of the Civil War and the ratification of the 14th Amendment the law settled increasingly on reining in the states and restricting the powers of state and local government vis a vis the federal government. Ostensibly this was to ensure that all citizens would enjoy the same fundamental rights irrespective of the state that each citizen lived in. It became much more than that as a result of FDR's New Deal and continuing through LBJ's Great Society programs to the present.
If anything, liberal supreme court justices have demonstrated a bias in favor of protecting and advancing social liberalism to the extent of inventing rights whole cloth as in the Roe v. Wade (the right to an abortion as an adjunct to the right of privacy enunciated in Griswold v. Connecticut). On the other hand, they have shown a bias against protecting personal property rights, a bias that dates back more than 70 years.
Today's court would apparently uphold an inner city woman's right to have a third-term abortion while simultaneously upholding the city's right to condemn her home so that a private abortion clinic could be built there.
No (although his great-great ganddaughter was a law school classmate). Eccles is a famous name in Utah, no doubt.
My "JCEccles" has reference to aussie Nobel laureate Sir John C. Eccles, one of the great neurophysiolgists of our era. A faithful Christian, he believed he had found empirical proof for the existence of the soul.
I like the idea of placing this protection on an express and absolutely solid constitutional footing. I think McClintock is ginning up the machinery in California to do just that. I hope he succeeds.
As a practical matter, it would seem that state constitutional amendments can be more easily and quickly implemented than a federal constitutional amendment. But I'd support the latter too.
Utah is a beautiful State, in its way.
But the multinationals can have that arbitrated at the WTO.
And that 'wrong message' is what? That people will not tolerate robery under color of authority?
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