Eminent domain
and the ballot box
Numerous challenges to the
government's right to seize or regulate private property are up for vote this election day.
By Les Christie, CNNMoney.com
staff writer
October 30 2006: 4:22 PM EST
NEW YORK (CNNMoney.com) --
Eminent domain is a hot-button issue this fall - 12
states have measures on the ballot to restrict the government from taking
property for private uses.
The spark
for all this activity is Kelo v. New London: The Supreme Court ruled in 2005 that the Connecticut city could
seize well-maintained private homes and give them to a developer.
Arizona,
California, Florida, Georgia, Idaho, Michigan, Montana, Nevada, New Hampshire,
North Dakota, Oregon, and South
Carolina have all scheduled votes on the issue. Louisiana approved a
similar measure in September.
California
is the issue's epicenter, and its Proposition 90 asks: "Should the
California Constitution be amended to require government to pay property owners
for substantial economic losses resulting from some new laws and rules, and
limit government authority to take ownership of private property?"
Prop. 90
proponents say the government's seizing of property for private development is
almost never justifiable. And, when eminent domain is applied for a public purpose,
such as a dam or school, they want higher compensation for property owners.
"It
will protect the American Dream," says Mimi Walters, a state assemblyman
and chair of Yes on 90, "and stop government abuse of eminent
domain."
It could
also redefine what "just compensation" actually means. Gideon Kanner, a property rights advocate and professor emeritus
of law at Loyola University in California, says, in past practice, payments
have been "neither just, nor compensation." He says the state has routinely paid market - or less than
market - value for properties seized under eminent domain.
Kanner says home owners should be paid much more than market value
to make up for the hassle and expense of moving and the emotional attachments
owners feel for their homes and neighborhoods.
The opposition
Tom Adams,
who co-chairs the "No on 90 Campaign" and is board president of the California League of
Conservation Voters, says that a broad coalition of groups have come together
to fight Prop. 90.
Many of the
opponents usually find each other on opposite sides of the fence. Left-leaning
conservationists - including Robert Redford - are lining up with conservative
business organizations to oppose the initiative. Also against it are middle of the road groups: homeowners, police and
firemen, labor organizations, seniors, educators, local governments and even
some property rights advocates.
A lot of the
opposition centers on wording that would require that the government compensate
property owners if it imposes any new conditions or restrictions that
result in a substantial economic loss for property owners. The only exceptions
are to protect health and safety.
Some
possible examples:
Prohibit
plowing that field because there are kangaroo rat nests there? Pay the farmer for
lost crops.
Refuse to
allow a hotel to switch from residential to transient trade because you want to
preserve low-income housing? Pay the hotel owner for its lost room rates.
Environmentalists,
including Robert Redford, worry this will tie the government's hands in
enacting tough conservation regulations. Worker, such as teachers, worry about
the tab for compensating big property owners.
Adams thinks Prop. 90 could even wind up hurting
property owners. It could result in claims for lost revenue, for example, for
night clubs or bars forced to curtail hours or operations because of noise
complaints.
Prop. 90
would cover private property of all kinds, according to Adams,
including businesses and intellectual property such as patents.
"The
definition [of new government action] is so broad," says Adams,
"it would prohibit the administration of present law."
Heavy impact?
For how much
impact Prop. 90 might have in the state, Adams says to
look to Oregon,
which passed a similar referendum in 2004.
"Oregon," he says, "is one tenth the size of California. There have
already been more than $6 billion in claims filed there."
That
translates into tens of billions of dollars a year in California.
Walters says
that a false argument. "In Oregon,
the claims could be retroactive and every single claim that was settled there
has been retroactive, some as far back as the 1970s. In California, only prospective claims are
allowed."
But if Adams
is right it might mean that government agencies would have to either agree to plans
made by property owners - no matter what the impact on the public interest - or
redirect budget dollars from their intended purposes into the hands of private
businesses and individuals.
As for how
the campaigns are faring, Walters sounds a lot more sanguine than Adams, who
admits defeating Prop. 90 is an uphill fight.
According to
Walters, 56 percent of Californians in the latest poll said they would vote Yes
on Prop. 90.