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."
Private citizens in Utah didn't wait to hear what the Supreme Court would say in Kelo. We pushed our legislators and governor to implement legislation expressly prohibiting these kinds of takings. So, the Kelo decision is largely a non-event as far as Utah is concerned.
The article says Utah is the first state to enact such legislation. That may be true. About a half a dozen other states also prohibit such takings, but these are likely due to state supreme court rulings specific to those states. Citizens in those states would be wise to fix the problem more permanently and do as as Utah has done, or amend their constitutions.
This particular article is taken from an environmentalist publication which points up the odd alliance that has formed over this issue extending from conservatives and radical libertarians on the right to radical environmentalists on the left.
The villain in this passion play is the cities, bastions of social experimentation and wealth redistribution. Cities delight in restricting private property rights. Rent controls have been a fixture in the big cities for decades.
Bottom line: get angry, but then direct that anger in a positive way, just as Utah citizens have done.
Yea! This needs to be done at the state and local level.
Is this law not trumped by the SCOTUS? Supreme law of the land, and all of that?
"We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised."
No. In Kelo the Supreme Court merely extended the limit for how far the government can go in taking property. States and local authorities are prefectly free to enact stricter rules and limits.
SCOTUS said that takings for economic development could be allowed, not that they must be allowed. Kelo et al were saying the takings were unconstitutional, but the Supreme Court disagreed (I think wrongly). This means that states can take private property and transfer it to another, but if states pass a law to limit their power, there is nothing that would be unconstitutional about that.
It's a little too late for this, in Utah's case. On my last trip out west I met a few folks from Utah in Cheyenne, WY who were utterly p!ssed off at the extensive abuse of "eminent domain" that was perpetrated by government officials for the 2002 Winter Olympics in Salt Lake City.
Of course not. The SCOTUS ruling says cities "can", not that they "must be allowed to". The state legislatures is where this should have been handled in the first place. Having the SCOTUS "rescue" property owners from their elected representatives would definitely be moving in the wrong direction. Look for the Connecticut legislature to follow suit.
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. 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.
This was a good move. Perhaps states should amend their constitutions, not just statutes, to prohibit municipalities and the like from taking private property for economic development.
Thanks.
That's been my point -- it is a local State issue and can be taken care of in the legislature which is what needs to be done. If the CT legislature had acted, this would be mute.
Instead of hand wringing, people need to take action to preclude this happening in their state -- city/state government is to blame in the CT case IMHO.
Anyone know where I can find the text of this bill? The Virginia General Assembly is out of session for the year and we have elections this fall. I'd like to see getting something like this passed next year.
Pinging Jeb Bush..........
No, in its idiotic ruling yesterday the SCOTUS said the states could amend their constitutions. However, scotus should never have gotten involved in this to start with and they should never have defined public use as being "public good". Public good is the same as common good used so often by Hillary and other communists and has no place in our govenment especially involving soctus decisions.
"public purposes" ??!? Where in the Constitution does it let them take land for public purpose? It DOESN'T! It only allows for public use, like roads.
As if "Sure, come in and we'll give you any property you want, even if somebody's living on it" is the right message?
Could a state pass legislation allowing citizens to own machine guns?
And to get around the idiotic commerce clause, insist that the weapons be manufactured in that state?
Just curious, as I seem to recall legislation pending in Montana that would do just that.
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