9/06/2006

Help Curb Local Government Abuse of Eminent Domain: Gilroy CA Dispatch, 9/5/06

By Lisa Pampuch

The timing couldn't be better.

With Morgan Hill officials and residents debating eminent domain - some have suggested that the city use eminent domain to "rehabilitate" Morgan Hill Plaza, home to a recently closed Albertson's grocery store; city council members/redevelopment agency directors are talking openly of granting themselves eminent domain powers when they renew the RDA - the appearance of Proposition 90 on the California ballot this November is especially propitious.

Eminent domain is the power of government to force the sale of private property for government use, tacitly acknowledged in the Fifth Amendment to the United States Constitution: "... nor shall private property be taken for public use, without just compensation."

It's important to note that the Fifth Amendment mentions nothing about forcing the sale of private property to spur economic development, remove blight, increase tax revenue or create jobs. Public use was traditionally understood to be projects like roads, sewers, schools, courthouses, city halls, libraries - public facilities built, owned and operated by government agencies.

After last year's ruling by the Supreme Court in the case of Kelo v. New London, government's eminent domain power was exponentially expanded to include anything that enhances the "public good."

The plaintiffs in Kelo sued to block the forced sale of their homes so that a pharmaceutical research facility and other homes could be built by a private developer. When the Supreme Court ruled in favor of the the city of New London, Conn., it decided that the government could force a private property owner to sell his or her property to another private party.

Now there are effectively no limits on the government's power to seize private property. Let's face it: A spin doctor with one hand tied behind his back could construe increased tax revenues, beautified buildings and additional jobs as enhancing the public good. After Kelo, no one's property is safe.

I'm not being reactionary. Well-respected dissenting Kelo Justice Sandra Day O'Connor, now retired, wrote, "The spectre of condemnation hangs over all property. Nothing is to prevent the state replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

That's where Prop. 90 comes in. It's an attempt to limit government power and protect private property rights after the Supreme Court's boneheaded Kelo decision.

When I've discussed this topic with folks who support eminent domain for private development, they tell me I'm cynical, that I should trust elected officials to use eminent domain in a restrained and judicious manner.

How can supporters of eminent domain for private development really think that elected officials can resist the strong influence of wealthy, well-connected developers over the the relatively tiny influence of an individual property owner? When it comes to campaign donations, lobbying pressure, tax revenue potential and hiring hordes of lawyers, individual property owners are at an extreme disadvantage compared to developers dangling tantalizing redevelopment deals before city councils, county supervisors, planning commissioners and similar governmental agencies.

Especially after Kelo made it so easy for elected officials to justify capitulating to deep-pocketed developers, that kind of trust is dangerously naive.

Joshua Kurlantzick's article in the January 2005 issue of Entrepreneur Magazine discusses the costs to small businesses when they are forced to move when the government seizes the property where their businesses are located: "Small businesses can be decimated by eminent domain," says Dana Berliner, a senior attorney at the Institute for Justice [a public-interest law firm fighting eminent domain abuse]. "Location is crucial to their success, and when they move, they can lose out. And while property owners are supposed to get 'just compensation,' few states require that the compensation take into account improvements put in by an entrepreneur."

I wonder, for example, what would happen to my favorite pizzeria, Palmina's, if it is evicted if the city uses eminent domain (or the threat of eminent domain) to force the owners of Morgan Hill Plaza to sell?

Public opinion polls show the vast majority of Americans - as many as 93 percent - disapprove of the forced sale of private property for private development.

According to the eminently helpful Smart Voter web site (www.smartvoter.org), hosted by the nonpartisan League of Women Voters, the central question in Prop. 90 is this: Should state and local governments be prohibited from condemning or damaging private property to promote other private projects?

If, like me, you think the answer to this question is yes, join me in voting yes on Prop. 90. No eminent domain for private development.


Gilroy CA Dispatch: http://www.gilroydispatch.com