November 12, 2008

Eminent Domain: Nevada serves up lesson to other states


Elko Daily Free Press

Eminent domain abuse has been a national controversy since the Supreme Court's decision in Kelo v. New London in 2005 that gave state and local government the authority to seize homes or businesses and give the property to private developers to use in ways bureaucrats consider more beneficial.

The Constitution says states may only take land “for public use,” but the justices redefined this phrase to mean simply “public benefit.” So now whenever a city council thinks it's a good idea, it can condemn your land and give it to someone else.

The problem is that bureaucrats always say their plans are a good idea - no matter how foolhardy, futile or corrupt they are. So it was not surprising that this case was met with a nationwide outcry, and by attempts to amend state constitutions to ban the abuse of this power locally.

These efforts reveal an interesting pattern: when eminent domain reform has been left to state legislatures, the results have been disappointing. But when citizens demand protection through initiatives, they usually get much more effective results.

And that was definitely true Nov. 4 in Nevada.

Voters overwhelmingly approved a new constitutional amendment that forbids the state from using eminent domain to take property from home and business owners and give the land to private developers.

Nevadans now enjoy what might be the strongest protections for property rights in the nation. And this victory for the owners of homes and businesses suggests some interesting lessons for the rest of the country.

That's because in states like Delaware, Ohio, New Hampshire, and elsewhere, elected officials have passed laws that sound good but provide virtually no protection for owners of private property. Many of these states, for example, enacted laws declaring that the government may not take land and give it to private developers - unless the land is “blighted.” But because the law defines “blight” so broadly that virtually anything can qualify, this still allows them to declare land blighted whenever it doesn't produce enough tax revenue, or doesn't look as nice as a city council member would like. Then the government can give the property to developers who lobby for the opportunity to enrich themselves using other people's property.

But in Florida, South Carolina, Arizona, and now Nevada, ballot initiatives have created serious new protections for the owners of private property. The new Nevada law declares that “public use” does not mean the use of the property by private companies, and that government may not redistribute property simply to improve the tax base or make a neighborhood conform to a bureaucrat's vision of what a neighborhood should look like.

What these initiatives reveal is that property owners, when given a clear choice between property rights and bureaucratic planning, choose property rights. They understand - as too many elected officials do not - that government exists to protect our rights to life, liberty and property, not to rearrange those rights to serve bureaucratic visions of community “improvement.”

The exception to the rule is California. This past spring, a coalition of city governments put forward Proposition 99, which actually expands the state's eminent domain powers. On the surface, the initiative seems to protect homeowners against the taking of their property, but the fine print added a new section to the state constitution that allows government to use eminent domain for a wide variety of new projects, and eliminates even the small protections for homeowners in most eminent domain cases.

Unsurprisingly, officials in Los Angeles County are already planning several eminent domain projects that have closed down some businesses, and will soon throw hundreds of property owners out of their homes.

Government officials and private developers know that property owners are angry about the abuse of eminent domain, and they will make every effort to shut down the effort to protect property rights.

In fact, they successfully sued the backers of the Nevada initiative and managed to eliminate some important protections for property rights before it was placed on the ballot. This coalition of government and businesses are intent on keeping open their opportunities to enrich themselves by taking away other peoples' property.

That's why it's therefore up to Americans - both in the ballot box and in the courtroom - to defend what is rightfully theirs: their fundamental right to private property.

Timothy Sandefur is an attorney with the Pacific Legal Foundation.