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."
Fundamental rights should be protected at ALL levels of government...from the local up to the federal....but the Constitution is ultimately the only real law we have...since state laws cannot usurp the Constitution....and the rights enumerated therein.
This is why we are so upset here...even if Utah can regulate around this ruling...a fundamental bulwark in the onslaught against government encroachment of individual freedoms has been eliminated.
40 Dat Mon
_____________________________________
Well put, Mon.. -- It's hard to understand why Eccles cannot see the issue:
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?
Its not the fed gov interfering, -- it's the States who are trying to 'set a course' around the Constitution's law of the land.
There has been constant tension on this point throughout our history. It is a very complicated issue.
Not really complicated at all. All levels of governments are obligated to support the Constitutions principles on individual rights.
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 US Constitution.
[Corrected for accuracy.]
Ostensibly this was to ensure that all citizens would enjoy the same fundamental rights irrespective of the state that each citizen lived in.
Ostensibly? No, this was the true reason. Individual rights were, and still are, being violated at all levels, as we see in yesterdays decision.
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).
Yep, -- a majority is properly restrained from violating an individuals rights.
On the other hand, they have shown a bias against protecting personal property rights, a bias that dates back more than 70 years.
Yep, -- a majority is enabled in violating an individuals rights.
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.
Yep, this shows the insanity of 'majority rule' decision making. Our constitutional rule of law must be followed in all such decisions.
I'm sure you are. We'll leave it at that.
I agree, - your impression is unimpressive. Leave it as you will.
You are new at FR, but there are others like you here that appear to subscribe to the notion that "the world and all other people exist to let me do whatever the hell I want to do."
I'm not impressed. Sometimes you don't get to do whatever the hell you want to do. Sometimes, just sometimes, the majority wins.
"Utah is a beautiful State, in its way."
You're absolutely right!! Utah is beautiful. In our travels, I get excited each time we even get close to that State.
From my perspective, it's most beautiful from the saddle of my Harley. One of these trips, I just might have to buy a small place there.
Having said all of that, the traffic is deadly dangerous in the Salt Lake city area. I call it the "Mormon 500" and do my best to stay the heck away from there. LOL
Thanks for the report! It's been 20 years since I've been west of Oklahoma, but I still remember the amazing scenery of Utah.
Our right to privacy, to be left alone, - is unenumerated because it is so self evident, so fundamental. As you said before: - "Fundamental rights should be protected at ALL levels of government...from the local up to the federal..."
The issue however is that there is another human being....the fetus...whose rights have been abrogated by Roe v Wade. That is the context in which I see abortion. This property ruling is similar. The SCOTUS is creating extra rights for some individuals...the developers...but at the expense of other individuals...the homeowners.
Again, well put, although I do not agree that women were acknowledged to have 'extra' rights by Roe.. Any prosecutor in the land can still put them on trial for murder.
The issues of religious expression for Christianity...the Boy Scouts....etc... are also similar. Ultimately liberalism creates special classes of people all of whom vie with each other for their EXTRA 'rights' given by almighty government.
Unfortunately, I see both sides of the political spectrum kowtowing before almighty gov, both fed & state.
I am a bit hopeful that Georgia will do something similar in the 2006 General Assembly. There was a House Resolution 87 here which was to be a state constitutional amendment to prohibit eminent domain for turning over to a private party or for tax revenue enhancement purposes. I think we will see that come back early in 2006.
I have already written to a state senator and told him that I see no reason to buy real estate in this state unless such constraints are enacted into law.
Yeah, Right! Let's trust the legislative bodies, that are comprised mostly of MEMBERS OF THE LEGAL INDUSTRY!
Have you noticed how few to NO community, or more importantly, national leaders, Republican/Democrat, liberal/conservative have come to the defense or condemnation of the Supreme Court's erosion of our 5th Amendment rights last week?
Thomas Jefferson had THIS to say --
"To consider the judges (the legal industry) as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges (the legal industry) are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
Then --
"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:212
Catch that last line again: "The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
As I've been saying for so long, "It's the legal industry, stupid." They've been playing us against each other while they've quietly been taking control.
Regrettably, it appears that except for local and national "conservative" talk-show hosts, the nation has been lulled back to sleep.
Nevertheless, we've still got our flag upside down for the fourth. Take care, all!
HDRabon
I am sure some lawyer hired by a developer could come up with some excuse all these State laws violate "Interstate Commerce".
If it ever reaches the USSC I bet the same 5 would go for it.
I am half joking but the other of me would not be surprised considering this day and age.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.