Righting a wrong on property rights
Threaten hearth and home, as a Supreme Court ruling on property rights did last year, and Americans will run to bar the door. Since the "Kelo" ruling, 30 states have passed laws to better protect property owners. Now the issue is on a dozen state ballots, making it the No. 1 initiative topic in the US.Skip to next paragraph
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The speed with which the states reacted is breathtaking – an expression of the outrage Americans felt when the High Court ruled in June 2005 that it was OK for New London, Conn., to take the home of Susette Kelo to make way for a private commercial project that would produce jobs and tax revenue.
The Fifth Amendment allows for government takings of private property for public use – if owners are justly compensated. What set radio talk shows abuzz was the court's broad interpretation of "public use" to allow "public purpose." It wasn't just building of public schools and roads that could justify takings, or eminent domain, but private economic development deemed beneficial to the public.
Americans understandably have a reflex reaction against anything that endangers property rights. These rights reflect bedrock values of individual freedom and economic opportunity. Nothing affirms the American dream like ownership of a home or business.
That's why the High Court, despite its ruling, also invited states to enact laws to rein in this type of eminent domain. Most states hopped right to it. And mostly, they've been fairly smart about it.
The states ran in the same direction. They generally make it more difficult for government bodies to seize private property strictly for economic development and tax-enhancing purposes, or to sell to a private entity. But the laws are far from uniform.
Several states placed an absolute ban on takings for economic development or for a private entity. Unfortunately, bans can be overly restrictive. Better to include some exceptions, as many states have.
A common one is for blight. Some states have wisely redefined blight to mean property that is a threat to public health or safety. For too long, loosely defined blight has been a loophole for governments eager to develop a block that's merely an eyesore or outdated.
Several states (but not enough) have worked to open up the eminent domain process so that owners have more advanced notice or a better appeals process. The new Missouri law, for instance, establishes an ombudsman for property owners. A few other states now offer more than fair-market value as compensation for takings – a recognition of economic loss, and of the burden of an unexpected move.
One unwise trend: ballot initiatives in some Western states to compensate property owners for lost value due to government regulation or zoning. Governments must be free to address issues such as sprawl and environmental protection – with proper community input. Oregon, which recently adopted a "regulatory takings" measure, is now saddled with more than 2,400 claims of over $5.7 billion – an impossible burden.
Zoning is not the same as bulldozing a home, and shouldn't be treated as such. These ballot initiatives, known as "Kelo-plus," should get a big negative from voters.