Eminent Domain - And your loss of your right to be secure in your property.

[DCT]

Draft Legislative Policy Statement
2006 Kansas Association of Counties

On page 2 of the KAC policy document it addresses the subject of eminent domain in the federal policy arena as follows:

Kansas Association of Counties supports the ability of counties to use eminent domain for economic development purposes while strengthening the process that balances private property interest and the welfare of the community at large.

On page 3 of the policy document, it further addresses the subject of eminent domain in the state policy arena as follows:

Counties Right to Use Eminent Domain. The Kansas Association of Counties opposes any legislation that would remove ability of local governments to use eminent domain for the purposes of taking a fee simple or other interest in land. The KAC supports the ability of counties to use eminent domain for economic development purposes while strengthening the process, which balances private property interest and the welfare of the community at large.

These KAC policy statements endorse a new way of looking at eminent domain that many people are increasingly uncomfortable with. Some legal scholars would argue that the definition of what constitutes a public use has evolved to include all sorts of arrangements that would have been considered highly irregular just a few decades ago. These include the taking of what would be considered functional properties that are generating tax revenue and passing these properties onto people who offer the promise of generating even more tax revenue.

Traditional lay interpretations of what constituted a public use have tended to fall along the lines of rights of ways for utilities, roads, bridges, and other forms of public works. Generations of Americans have been taught since birth that the Government couldn’t just come in and take your property unless it could find no other way ensure the construction of a necessary public use. Furthermore, you would be compensated fairly for the loss of your property.

In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that "public use" of the property be demonstrated. The Fifth Amendment partially reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Most courts have interpreted "just compensation" to be the fair market value of the condemned property. Over the years, the definition of "public use" has expanded to include economic development plans, which use eminent domain seizures to enable commercial development for generating more tax revenue for the local government. Critics, myself among them, contend this perverts the intent of eminent domain law and tramples personal property rights.
The new understanding of what constitutes a public use was recently affirmed by the US Supreme Court in Kelo v. New London. This decision by the US Supreme Court affirms all Americans are secure in their property as long as no one else can generate more tax revenue for the government on that parcel. Once, a government can be convinced that the current owner of a parcel is not producing the kind of tax revenue that another is capable of, then it is possible for the government to use its powers of eminent domain to take that parcel and hand it to another private citizen, developer, or corporation.

In 1981, in Michigan, the Michigan Supreme Court, building on the precedent set by Berman v. Parker, 348 U.S. 26 (1954), permitted the neighborhood of Poletown to be taken in order to build a General Motors plant. Courts in other states relied on this decision, which was overturned in 2004, as precedent. This expansion of the definition was argued before the United States Supreme Court in February 2005, in Kelo v. New London. In June 2005, the Supreme Court issued their decision in favor of New London, in a narrow 5-4 ruling—a decision that gives local governments wide latitude to decide when a seizure is for "public purposes", including economic development. The court hinted, however, that states could pass laws limiting the purposes for which eminent domain could be used. The controversial ruling sparked a backlash among citizens, and several states either have or are in the process of passing laws limiting eminent domain to either traditional uses (roads and public buildings) or to eliminate blight.

KAC’s proposed 2006 Legislative Platform endorses this new interpretation of the eminent domain power where the unrestricted transfer of a citizen’s private property to a private for-profit interest is possible. KAC is in favor of this policy and has proposed this policy because it strengthens their interest group’s power (Kansas Counties) at the expense of every citizen and property owner in the State of Kansas. It is only of interest to KAC as long as the government gets a cut of the profits.

In their policy statement KAC further make an Orwellian pronouncement in favor of balancing property rights interests with the interests of the community at large. That statement is clearly a sugarcoating to make the bitter pill go down easier. Once eminent domain becomes usable at the whim of local elected officials with no real safeguard on it limits, it is destined to be abused. How many of us can personally afford to fight a large corporation and their lobbyists and lawyers if they decide our property is desirable?

This policy is also essentially anti-capitalistic in its approach to allowing private for-profit firms to acquire real estate in that it removes the market’s ability to set the price. If a large corporation wants your land fairness dictates they should have to pay fair market value and their need for your property should never come before your right to be secure in your home and property as a citizen of the United States of America.

Justice Sandra Day O'Connor wrote the principal dissent, joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Justice O'Connor suggested that the use of this power in a reverse Robin Hood fashion—take from the poor, give to the rich—would become the norm, not the exception: "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” She argued that the decision eliminates "any distinction between private and public use of property — and thereby effectively [deletes] the words 'for public use' from the Takings Clause of the Fifth Amendment".

Clarence Thomas also penned a separate originalist dissent, in which he argued that the precedents the court's decision relied upon were flawed and that "something has gone seriously awry with this Court's interpretation of the Constitution.” He accuses the majority of replacing the Fifth Amendment's "Public Use" clause with a very different "public purpose" test: "This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'"
Thomas also made use of the argument presented in the NAACP/AARP/SCLS amicus brief, (co-authored by South Jersey Legal Services) on behalf of three low-income residents' groups fighting redevelopment in New Jersey, noting: "Losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful."

“Reinterpreting” the traditional concept of what constitutes a “public use” to enable the outright taking of a citizen’s property is simply un-American. Primarily a government must serve the people. Sliding the definition of “public purpose” around to a convenient form, which enriches private interests at the expense of other private citizens, is wrong. If the citizen’s we serve are being told that they will never be secure in their homes as long as some other citizen has the ability to provide the government a slightly larger income, then we have participated in a great injustice.

It is my wish that the people of Kansas express to their elected officials their opinion that disregarding the rights afforded to our fellow citizens, as enumerated in the Constitution of the United States of America, and its subsequent amendments, in order to generate a few extra tax dollars is a fundamental violation of our oaths to protect and defend the Constitution of the United States of America. It is also a very shortsighted policy in that it enhances a popular trend towards regarding the Constitution of the United States as “guide” instead of the law of the land. There is a mechanism for amending the Constitution if a plurality of states so desire.

*Some portions of the text of this memo are directly attributable to: http://en.wikipedia.org/wiki/Eminent_domain

[lurker]

Where'd the rest of it come from?

[DCT]

I wrote some of it.

[lurker]

Originally Posted by DCT

I wrote some of it.

It looks like it came from here:
http://www.planetizen.com/radar/item.php?id=13413
sourced to: Leavenworth County Planning & Zoning Department
Nov 8, 2005, 6:30 am

[DCT]

Yes, that would be true.

[lurker]

OK DCT. I'll discuss E-D with you up to but not after insults. OK?

[DCT]

Agreed. A cease fire is in effect.

[K C Muffin]

I gotta see this to believe it

[lurker]

Do you have property that's subject to possible E-D acquisition?

I do. That's why I'm aware and somewhat knowledgable on this topic.

FWIW, I won't stay up much longer tonight.

[DCT]

No, I'm in a policy development and application position where we occasionally encounter an economic development situation. I'm one of the few "originalists" who view eminent domain the old fashioned way. It should only be used for true public uses and never in a manner where you take land from one party and pass it on to another private party. If Reagan had a position on it, I problably agreed with it.