Commentary

Eminent Domain Blinds Bureaucrats to Their Duty

This article appeared in the Salt Lake Tribune on June 16, 2006.

One year after the Supreme Court shocked Americans with its eminent domain decision, Kelo v. New London, officials in Riviera Beach, Fla., announced their intention to seize 400 acres of land, including hundreds of homes and businesses, and transfer the property to a developer to build stores and condominiums.

Although Gov. Jeb Bush signed a new law on May 11, 2006, that prohibits these kinds of property seizures, the city rushed to approve its plan in an emergency meeting on May 10. Asked about these shady tactics, Riviera Beach Mayor Michael Brown insisted the city acted legally.

“We’re comfortable,” he said, “with everything we’ve done.” Unfortunately, Brown’s audacity is typical of bureaucrats who see Kelo as signaling open season on landowners. These officials perceive themselves as sculptors of neighborhoods, who mold their ideal city from the property that people have worked hard to buy. They don’t see property as a right, but as a privilege that can be revoked or altered in the name of “progress.”

Our Founding Fathers believed that government exists to protect property rights. But to “progressives” like Brown, private property - and the people who own it - exist for the government’s purposes.

Another “progressive,” Louis Brandeis, described this interpretation of property rights this way: “rights of property and the liberty of the individual,” he said, “must be remolded, from time to time, to meet the changing needs of society.”

This attitude is shared by the Los Angeles City Council, which is now in the process of condemning the 70-year-old Bernard Luggage Store on the corner of Hollywood and Vine, so it can replace the store with a luxury hotel … and by officials in Freeport, Texas, who are taking a small shrimping business so a developer can build a shopping center … and by bureaucrats in Norwood, Ohio, who are seizing a neighborhood of pretty, middle-class homes to make way for an industrial park.

In the past year, several states have passed laws aimed at restricting the use of eminent domain. Alas, many of these laws include loopholes allowing government to take property for developers if the land is declared “blighted.” Since most states define “blight” in extremely vague terms, such exceptions essentially nullify these new laws.

A new Alabama law, for example, prohibits land seizures for private development - unless bureaucrats believe it suffers from “dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors.” Such ambiguous terms allow practically any property in Alabama to be taken.

Other states, including Florida, have enacted strong new protections for property owners. That state’s new law - the one that Mayor Brown is shamelessly trying to evade - not only prohibits eminent domain for development but also forbids government from seizing “blighted areas.” If Mayor Brown or other Florida officials want to bolster the economy, the law requires them to do so in ways that respect property rights, such as lowering taxes, or eliminating regulations that discourage entrepreneurs. In fact, the best way to cure economic stagnation is to increase - not decrease - security for property rights.

Nobody’s going to invest in a place where property can be stolen, or condemned, at any moment. In fact, experience shows that redevelopment doesn’t require the use of eminent domain. Seattle recently completed a major redevelopment project without it. Even the Disney theme parks were built without using eminent domain. Unfortunately, eminent domain abuse not only blinds officials to the possibilities of free-market development; it also distracts them from their legal and ethical duties.

Bureaucrats today have a hard time distinguishing the genuine public interest from the private interests of powerful developers. There’s really only one thing that’s in the genuine public interest: the equal protection of individual rights. But people like Brown think that seizing land for shopping centers is good for society because it “creates jobs.”

As the Michigan Supreme Court recently noted, this theory “would validate practically any exercise of the power of eminent domain on behalf of a private entity. After all, if one’s ownership of private property is forever subject to the government’s determination that another private party would put one’s land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer.”

Mayor Brown’s actions prove that citizens must be willing to stand up to their elected officials if they want their property rights respected. That’s why the Pacific Legal Foundation has filed a lawsuit against Riviera Beach, to defend the rights of the city’s property owners.

But real reform requires more than court decisions. It requires all Americans to return to our founding principles, and to recognize that government doesn’t exist to “remold” our rights; it exists to protect our rights to life, liberty, and the pursuit of happiness.

Timothy Sandefur is a staff attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America.