Posted on 05/27/2002 8:40:27 PM PDT by Alternate_Heaven
Libertarian Solutions: Property rights in America: Your 'castle' is under siege by Bill Winter, LP News Editor & Jon Trager, LP News Staff Writer
EDITOR'S NOTE: How can Libertarianism solve America's problems? Each issue, LP News showcases how "Libertarian Solutions" -- or interim steps in a libertarian direction -- can help improve our nation.
[May 24] In 1994, Vera Coking received an ominous letter from the New Jersey Casino Reinvestment Development Authority.
Coking, a widow who had lived in her Atlantic City home for 35 years, was notified that her house had been seized under the state's eminent domain laws.
She had 30 days to accept an offer to buy her property at one-quarter its appraised value, or the Casino Reinvestment Development Authority (CRDA) would have her forcibly removed.
But a worse indignity followed, when Coking learned why her home was being seized: It would be given to billionaire Donald Trump, so he could build a new limousine parking lot for one of his opulent casinos.
Under New Jersey law, the government -- and even quasi-governmental agencies like the CRDA -- could seize property if it could be put to better economic use by others.
Since Donald Trump's parking lot would generate more tax revenue for the government, the seizure of Coking's home qualified as a "public use," said the CRDA.
The widow was appalled. "This is my home. This is my castle," she said.
It didn't matter. In America, it used to be that a man's -- or a widow's -- home was his castle. No longer.
Now, the federal Environmental Protection Agency can declare the castle moat a protected wetland, and prohibit development. A local government can condemn the castle if the wall isn't painted properly. The Drug Enforcement Agency can seize the castle if they suspect drugs were used on the property. And, as Vera Coking found out, the state government can seize your castle if King Trump wants to expand his gambling palace.
Today, we run the risk of a government that has "practically unlimited control and jurisdiction over private property," wrote James Bovard in Lost Rights. Some examples:
* In Florida, Ocie Mills and his son were given a two-year prison sentence for dumping clean sand on their property in violation of federal "wetlands" law. Under the federal definition, a "wetland" can be dry 350 days a year.
* In Alexandria, Virginia, the Office of Code Enforcement sent letters to 22 homeowners threatening to condemn their property -- and evict the residents -- if they didn't fix chipped paint on their windowsills and door frames.
* In Adair County, Missouri, police seized the 60-acre farm of Sheri and Matthew Farrell based on a tip from a paid drug informer. The Farrells, the informant claimed, were growing marijuana on the farm -- a false allegation the police didn't bother to verify before seizing the land.
* In Lake Tahoe, which straddles the California-Nevada border, the Tahoe Regional Planning Agency (TRPA) imposed a moratorium on development while it worked on a long-term environmental policy. As a result, several hundred families were unable to build homes, or improve their property.
As the government's War on Property Rights escalates -- and as more laws and regulations nibble away, termite-like, at the philosophical foundations of private property -- increasing numbers of these cases are ending up in court.
Vera Coking was lucky. After a four-year legal battle, the New Jersey Supreme Court overturned the seizure order. The widow was allowed to keep her home.
The Lake Tahoe families weren't so lucky. They sued the TRPA, arguing that the freeze on development was a de facto "taking" of private property, since it deprived them of the economic value of their land. The U.S. Supreme Court disagreed on April 23, on a 6-3 vote.
"Treating all [regulations] as ... takings would transform government regulation into a luxury few governments could afford," wrote Justice John Paul Stevens.
But Americans shouldn't have to rely on expensive lawsuits -- and the legal roulette of finding a sympathetic judge -- to keep their private property private. Here are some common-sense reforms that could be passed immediately to better protect property rights:
* Sharply curtail the power of eminent domain laws.
Under the Fifth Amendment to the U.S. Constitution, the government was given the power to take private property "for public use" -- but only with "just compensation." This power was used to take land from private owners to build railroads in the 1800s, and to construct highways and airports in more recent times.
With the definition of "public use" now so debased that it includes even Donald Trump's limousine parking lots, privately owned baseball stadiums, and General Motors' factories, it's time to return to the original Constitutional meaning.
As the Cato Institute noted in its 2000 Handbook for Congress: "Eminent domain should be used sparingly and only for truly public use. That means for a use that is broadly enjoyed by the public, rather than some narrow part of the public. More precisely, it means for a use that is owned and controlled by the public."
While some Libertarians may cringe at allowing the government to seize property for any reason, limiting "public use" to the traditional Constitutional definition would sharply curtail eminent domain abuses.
* Require compensation for regulatory takings.
Politicians have enormous power to regulate what Americans can do with their property. By declaring a puddle of mud a "wetland" or by declaring a species of animals "endangered," politicians can block development of land. By invoking "smart growth" law, politicians can impose density codes that regulate which kinds of buildings can (and cannot) be constructed. By declaring certain areas "historic landmarks," politicians can prohibit landowners from demolishing old buildings or improving a home's exterior.
Politicians can get away with such actions, in part, because the judicial branch allows them to. Some courts have held that regulations only become "taking" when all or almost all of the economic value of property is lost. In 1922, Justice Oliver Wendell Holmes ruled that regulations only become taking when "it goes too far." Under such amorphous restrictions, politicians have gone farther and farther.
However, such regulations come with a high price tag -- sometimes affecting entire communities. For example, Randall O'Toole of the Thoreau Institute reported that Portland, Oregon's "smart growth" laws "have changed one of the nation's most affordable markets for single-family housing in 1989 to one of the least affordable since 1996" by limiting new construction.
Some regulations affect only the owners of a particular piece of land. For example, according to James Bovard, after a 240-acre tract of land in East Rutherford, New Jersey was classified as "wetlands," its value plummeted from $20 million to $1 million because of development restrictions. For the owner, $19 million in value was wiped out by a single regulation.
The solution is clear, argued the Cato Institute: Acknowledge that the right of property entails the right to use it. Without such a right, private property is a meaningless concept. Therefore, "Any action by government that takes any property" -- or the right to use that property -- "is, by definition, a taking [and requires] compensation for any financial losses that the owner may suffer as a result," said the Cato Handbook for Congress.
Using such guidelines, a regulation that strips land of 50% of its value would require politicians to compensate the owner for that 50%. Under such a system, the cost of regulations would skyrocket. Regulations would indeed become "a luxury few governments could afford" -- and respect for property rights would again become a necessity that few governments could evade.
* Reform asset forfeiture laws.
Asset forfeiture laws allow police agencies to seize private property if they suspect it has been used to facilitate a crime, or if they believe it was purchased with the proceeds of a crime. No criminal conviction is required, and no court-approved evidence is needed.
Such laws create an almost irresistible incentive for police to raise revenue through seizures. That's why in 1999, almost $500 million in private property was taken by federal, state, and local law enforcement agencies. In over 80% of those cases, no one was ever formally charged with a crime.
Consequently, Rep. Henry Hyde (R-IL) introduced the Civil Asset Forfeiture Reform Act of 2000. The bill required the government to show evidence that property was genuinely subject to forfeiture, and to notify individuals within 60 days that their property has been seized.
This bill was a modest step in the right direction, but more remains to be done. At the very least, the government should require a criminal conviction before any property is seized. If law enforcement can't prove that a crime was committed, they shouldn't be able to punish people by seizing property. Such a reform would limit property forfeitures, and help prevent cops from behaving like robbers.
As James Bovard noted in Lost Rights, property rights abuses are not new to Americans. In the early 1700s, the British Parliament banned colonial Americans from cutting down white pine trees, since the Royal Navy used them for ship's masts. The King's agent claimed every white pine for the Crown -- even if they grew on private property.
When the colonialists marched in rebellion against the British army in 1775, they carried a flag depicting a pine tree as a symbol of tyranny.
"Now, more than two centuries later," wrote Bovard, "mass confiscation has again become fashionable. Politicians and the courts have created an overwhelming presumption in favor of the government's right to seize control over private land; seize possession of private homes, boats, and cars; and even seize the cash in people's wallets."
It's time for Americans to demand more robust protections of property rights -- and perhaps to hoist the white pine flag as a symbol of a property rights "castle" that is once again under siege by government.
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