The Cato Institute has a new video that details the history of Kelo v. City of New London, in which Suzette Kelo’s house was taken from her using eminent domain and given to a private developer for purposes of economic development.
“As it happens, the space where Kelo’s house and others once stood is still an empty dustbowl generating zero economic impact for the town.”
View the video by clicking here.
Written by John D’Aloia Jr.
“…. nor shall private property be taken for public use without just compensation.” – – U.S. Constitution, Amendment V. The taking of property by eminent domain for reasons that do not meet the historic definition of “public use” has been much in the news since the Supreme Court handed down its infamous Kelo decision.
Eminent domain is not the only way that private property can be acquired by government. Placing restrictions on the land by law or regulation can also be a taking that warrants just compensation.
The Pottawatomie County Commission has adopted a change to the county’s zoning rules that restrict the use of land that is within the inundation boundaries down stream of watershed dams, that is within the boundaries of the area which would be inundated if the dam was breeched. Two of the stated purposes are to (1) protect life safety and the general public welfare, and (2) to prohibit dwelling units in the inundation area. While existing land uses as of the effective date of the amendment are grandfathered and declared to be conforming, if a person has a residence in an inundation area that is destroyed beyond 51 percent of its real value, by any cause, the home cannot be rebuilt in the inundation area.
Imposing a restriction on property which limits the ability of a landowner to use the land is, for all intents and purposes, a taking of the property. That this is so was recognized in the county commission’s discussions. As reported in the January 31, 2007 Smoke Signal, County Planner John Keller told the commissioners that for dams already in place, the amendment was a compromise on the part of the planning commission and taking the property rights was a necessary measure of that compromise.
A principle that bears on the matter is that when government takes an action “for the general public welfare,” the cost of that action should be borne by all citizens, not just a few. This is the principle behind the Vth Amendment. In this case, the zoning ordinance amendment has taken property rights from everyone who owns property that lies within an inundation area, limiting them as to what they can do in the future with their property. For this, they should not be forced to bear the full cost of what is being done “for the general public welfare.” They should be compensated using general tax revenues, transferring at least part of the cost to all citizens.
The article also stated that the restrictions were needed to “save” the watershed districts from having to upgrade dams, upgrades that would be cost prohibitive. This in itself is a shifting of the financial burden required “for the general public welfare” from all citizens to individual landowners.
The citizens of the State of Oregon recognized the justice involved in these situations when they adopted by referendum Measure 37. Measure 37 requires agencies enforcing a newly imposed land use regulation to either pay just compensation, equal to the reduction of the fair market value caused by the regulation, or to modify or not apply the regulation so the property owner can use their land as allowed at the time they acquired the property. Measure 37 was upheld by the Oregon Supreme Court. (The text of Measure 37 can be read at www.oia.org/SonOf7text.htm.
I know not how many people are affected by the county’s action, or to what extent the value of their land has been lessened, but with 26 watershed dams in the county, and plans for constructing 56 more, I suspect that there are those who will be impacted and will have reason to initiate a request for “just compensation.”
The link below from Castle Coalition shows some properties that have been declared as blighted by local governments, so that the local government can condemn the property and take it from its owner under the process of eminent domain. Judge for yourself as to whether these properties are, indeed, blight.
http://www.castlecoalition.org/CastleWatch/bogusblight/index.html
Thank you to John Todd for this excellent material.
Testimony in Opposition to the County’s use of Eminent Domain for the Arena Project.
Dear Commissioners:
My name is John Todd. I am a real estate broker and developer and I come before you in opposition to the County’s proposed use of eminent domain for the downtown arena footprint.
On August 25, 2004 and prior to the arena vote in November of that year, I presented testimony before this Commission questioning the wisdom of building a downtown arena without knowing the exact location of the parcel(s) of land the project would be located on. I asked the questions, does the Commission know the exact location of the arena project? Is the needed land for sale? Are the property owners willing to selling their land? And, most importantly, has the County secured a contract option to purchase the needed land with an exact purchase price? I believed then and now that the taxpaying public needed to know the answers to those questions before making a decision on a $184.5 million dollar project in the voting booth. From what I have been reading in the news recently, it seems apparent to me now that County officials failed in their “due diligence” responsibility to the citizens of this county by not securing the land for the arena in advance, and should now be willing to authorize another “non-binding” or perhaps a “binding” and final public vote on the arena project.
There is precedence for another vote since a “non-binding” no vote in 1992 was ignored by local officials, and perhaps a third and perhaps this time a “binding” vote could be used to settle this matter for good, with the express stipulation that any sales tax money collected for the arena to date be used to reduce property taxes in the county through a reduced mil levy over the next 2 or 3 years. As you will recall, the fear of higher property taxes was the primary argument proponents for the arena used in securing their thin 48% to 52% yes vote in 2004. Perhaps the prospect of property tax reduction would appeal to the voters. And another vote on an arena could give the county commission an opportunity to avoid the confrontational use of their eminent domain power to involuntarily strip 22 property owners of their land and in some cases businesses.
I oppose the County’s use of their eminent domain power to correct the due diligence responsibilities to the citizens of Sedgwick County they missed when they failed to secure the arena footprint land in advance of any public vote for funding on the project.
Secure private property rights are the bedrock for all of our other rights. Eminent domain abuse damages people’s faith in their own government, and people who are not secure in their own possessions cannot plan for their own future. A healthy economy is best achieved when individuals are free to use their own resources as they see fit. When government decides how the individual uses his property, the resultant system works poorly because it necessitates the use of coercion. The protection of private property rights is therefore essential to a healthy economy.
Nobel Prize winning economists Milton Friedman says, “In an economically free society, the fundamental function of government is the protection of private property and the provision of a stable infrastructure for a voluntary exchange system. When a government fails to protect private property, takes property itself without full compensation, or establishes restrictions (and follows policies) that limit voluntary exchange, it violates the economic freedom of its citizens.”
Thank you to John Todd for this testimony on this threat to liberty, and for traveling to Topeka to deliver it.
To: Members of the House Federal and State Committee, March 6, 2006 hearing.
Subject: Testimony in Support for the passage of House Concurrent Resolution No. 5025;
conditional Support for the passage of House Concurrent Resolution No. 5040;
and unconditional Support for the passage of Senate Concurrent Resolution No. 1616;
all involving Eminent Domain reform.
I am a real estate broker and land developer in Sedgwick County, and a Volunteer Coordinator for Americans For Prosperity, and a member of the Wichita Independent Business Association. I am not here to speak for these groups, but as a real estate practitioner and private citizen.
You should not allow cities, counties and state agencies the power through eminent domain to force someone to involuntarily sell their home, their business, or their farm so they can give it to other private owners for their own private use. Under redevelopment law, city councils can essentially become the agent for the powerful, politically connected developers that tell city councils, “condemn this persons home, business, or farm, and through our development process, the tax revenue for the city will go up, and in the process you can look like visionaries.” (See attached testimony presented by Tim Sandefur, attorney for the “Pacific Legal Foundation” to a California legislative committee) Until the recent Kelo decision, the Fifth Amendment to our Constitution has allowed government to take private property for “public use” only, but now “public use” means anything a governmental unit decides will “benefit” the public, including increased tax revenues. That is why Steven Greenhut in his book, “Abuse of Power: How Government Misuses Eminent Domain” explains why cities in some parts of the country are taking non-taxed church properties through the eminent domain process and turning them over to tax-paying private developers in order to increase tax revenues. A chapter in his book entitled, “God Doesn’t Pay Taxes” explains that abuse in detail.
“Government is instituted to protect property of every sort,” wrote James Madison, and for this reason, “that alone is a just government, which impartially secures to every man, whatever is his own.”
Our opponents argue that eminent domain is used only as a last resort, and that it isn’t used very often. Tell that to the small business owner who now has local government involved in his business as an “unwanted” partner with no financial interest in the business demanding that he vacate the location he has spent a lifetime building up to a larger competitor. Is there really any amount of money that will satisfy the “just compensation” argument for such a forced involuntary move that it has taken this business owner decades to build?
Another argument we hear is that eminent domain is a valuable tool for economic development. I believe just the opposite is true. Eminent domain abuse damages people’s faith in their own government, and people who are not secure in their own possessions cannot plan for their own future. A healthy economy is best achieved when individuals are free to use their own resources as they see fit. When government decides how the individual uses his property, the resultant system works poorly because it necessitates the use of coercion. The protection of private property rights is therefore essential to a healthy economy.
Nobel Prize winning economists Milton Friedman says, “In an economically free society, the fundamental function of government is the protection of private property and the provision of a stable infrastructure for a voluntary exchange system. When a government fails to protect private property, takes property itself without full compensation, or establishes restrictions (and follows policies) that limit voluntary exchange, it violates the economic freedom of its citizens.”
We need a Constitutional amendment in Kansas to protect private property rights from eminent domain abuse. I support the eminent domain reform contained in House Concurrent Resolution No. 5025, with conditional support for House Concurrent Resolution No. 5040. However, I believe you can best serve the citizens and property owners of this state by setting the goal for eminent domain reform higher through the passage of Senate Concurrent Resolution No. 1616. A poll commissioned by Americans For Prosperity shows that a resounding 90% of the Kansans polled favored eminent domain reform. I would ask you to give the people what they want!
To: The Kansas House/Senate Joint Committee on Economic Development.
Subject: Testimony Regarding Eminent Domain at the October 11, 2005 hearing.
My name is John Todd. I am a real estate broker and land developer from Wichita.
I support the proposition to amend article 15 of the constitution of the state of Kansas by adding a new section thereto, concerning eminent domain as follows:
“Private property shall not be taken except for public use, and private property shall not be taken without just compensation. The taking of private property with the intent to or in anticipation of selling, leasing or otherwise transferring any interest in the property to any private entity is not a valid public use and is prohibited.”
I also support the immediate passage of legislation that would codify into law the exact meaning of the above amendment language. This would replace existing statutes.
I do not support any additional language in the amendment or in any immediately passed legislation that would in any way mitigate the private property rights protection contained therein.
The keys to the economic freedoms we enjoy in this country are “individual liberty”, “private property rights” and the “free market system”. Examples of failed economic systems like the former Soviet Union emphasized the “collective good”, “state owned property” and “state controlled markets”. Allowing governments the power to take privately owned homes and businesses from individuals and turn them over to private developers for potentially more profitable, higher-tax uses, is a good example of eminent domain abuse done for the “collective” benefit of a community. Using eminent domain to seize property for private/public partnerships projects is the rage today, privatizing profits for the inside group, and reserving losses for public taxpayers. The governments participation in the process of taking private property from one private group for the benefit of another private group, and placing governments in a position to choose which business groups wins and which fails, flies in the face of private property rights, freedom, and free market economics.
A quote by Nobel Prize winning economists Milton Friedman, and Gary Becker as well as economics history Professor Douglass North in Tom Bethell’s book “The Noblest Triumph, Property and Prosperity Through The Ages” is appropriate here. “In an economically free society, the fundamental function of government is the protection of private property and the provision of a stable infrastructure for a voluntary exchange system. When a government fails to protect private property, takes property itself without full compensation, or establishes restrictions (and follows policies) that limit voluntary exchange, it violates the economic freedom of its citizens.”
Please support the eminent domain reforms I have suggested.