Private Property

Nov 10, 2006

"Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner. . . . Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. . . . The Founders cannot have intended this perverse result."
—Justice Sandra Day O’Connor, dissenting in the Supreme Court case Kelo v. New London


The right to own and use private property is among the most essential of human rights and the basis for economic growth, as such, property rights are guaranteed in our Constitution. Yet in today’s America, government tramples on this right in countless ways. Regulations forbid people to use their property as they wish, and police departments snatch personal belongings on the mere suspicion that they might have been used in committing a crime. In Kelo v. New London, the Supreme Court declared that government may seize homes or businesses, and transfer the land to private developers to build stores, restaurants, or hotels, a decision that was met with a firestorm of criticism across the nation. America’s Founders wrote a Constitution that would protect the rights of property owners, rights that began to be eroded with the Progressive Era’s abandonment of the principles of individual liberty. Thanks to the abuse of eminent domain, land use laws, and asset forfeiture laws, federal, state, and local governments have now come to see property rights as little more than temporary permission for the individual to use what is apparently considered “public” property, permission that can be revoked at any time in the vague name of the “greater good.” Thirty-one states have previously voted to restrict government powers to seize private property under the laws of Eminent Domain. This election has seen twelve more states put the measure on the ballot, with four states (Idaho included) going so far as attempting to restrict regulatory takings as well.

Eminent Domain laws were used to acquire the land needed to build our interstate highway system and in building many national defense projects, which is understandable as they were built to fill a public need, and are owned by the public. However, I don’t see any excuse for it to be used in greasing the skids for any privately owned business operation, no matter how badly the governing entity wants the tax increase. It sounds quite like something that would have happend in “Merrie Olde England”, wherein if the King got mad at you, he seized your holdings and gave them to his buddy of the moment, leaving you, literally, out in the cold with no recourse! Much like the laws of medieval Europe, eminent domain assumes that the government owns everything, and the property holder is little more than a squatter on government land. In the Kelo case, the general idea was that certain private properties didn’t bring much tax money into the rather financially strapped city coffers, while as part of an industrial facility, resort hotel, and “high end” apartments, the city stood to make money, big time. (Which, incidentally, hasn’t happened yet, and apparently isn’t going to.)

Here in Idaho, the “Con” side of Proposition 2 appears to be concerned with the potential of someone coming into the state, buying a bunch of land, and pronouncing that they intend to build some gawdawful thing that our laws and ordinances take a dim view of. At that point they can wave proposition 2 at everyone and demand millions of dollars in damages because they can’t use their new property as they wanted. All in all it’s an honest concern, and a very real possibility as well. Oregon solved the problem by waiving any sort of property restrictions so that the state doesn’t get stuck paying compensation, leaving the neighbors objections up to the civil courts where they belong in the first place. The folks in the statehouse should simplify our existing land use laws, clearly delineating just what can or can’t be done with private property, or rather, you don’t put a housing development in the neighborhood of a feed-lot, and you don’t build a paper mill in the middle of a residential area.

We’ve all heard of the theoretical case where somebody intends to start a hog farm in a high value neighborhood. A rather extreme example I think, but legally preventing things like that is the purpose of having a planning and zoning ordinance. However “Big City” planning and zoning commonly goes far beyond any reasonable interpretation of laws governing property use, seeming in the interest of demonstrating bureaucratic authority. Nor can I think of any acceptable reason to “regulate” land use outside of the city limits. Personally I think that noticing the neighbors are buying a new rope, or laying in a supply of tar and feathers, would be enough to make anyone change his mind about the joys of hog farming!

Like any other authority that is allowed the government, there must be severe controls on how the government may exercise that authority.