Supes Take Stand on
Eminent Domain Abuse
At our July 19 meeting, the Orange County Board of Supervisors voted 5-0 to seek stronger protections for California property owners against eminent domain seizures. We endorsed AB590 by Assemblywoman Mimi Walters (R-Laguna Niguel) restricting eminent domain to purely public uses.
In Kelo vs. New London, a 5-4 Supreme Court majority ruled that there is no federal right to own property. Any government can, at any time, for any reason, seize anyone’s property—even to transfer it to another private owner.
This radical decision has gutted the constitutional “public use” restriction in the use of eminent domain. Property may now be condemned to clear land for purely private development. Any politically powerful developer or corporation may now seize anyone’s home, business, farm or property for its own purposes.
“Fair market value” must still be paid, but this is meaningless in a forced sale. People have strong sentimental attachments to their home and neighbors. A small business owner has loyal local customers. They cannot be compensated by a theoretical “fair market value”.
There are times when clear public uses transcend individual property rights, but these are rare. A freeway, a school, a military base or a post office are true public uses when eminent domain—reluctantly—may be used. The Kelo case removes all federal restrictions on government takings.
Eminent Domain was used by New London, Connecticut, to seize homes and turn the property over to a hotel developer, under the guise of “economic development.” The Court majority commented that promoting economic development is a legitimate use of eminent domain.
Eminent domain, however, does not promote economic development. It does just the opposite. Widespread use of eminent domain by cities has demolished whole neighborhoods and destroyed tight-knit communities. “Urban renewal” became a catch phrase for instant slums and urban deserts created through massive use of eminent domain.
Widespread eminent domain and billions in subsidies for commercial development have produced no net economic benefits, according to the 1998 Public Policy Institute study, Subsidizing Redevelopment in California. Half-empty “ghost malls” include the Hollywood-Highland center, now worth a quarter of its original value. Costa Mesa’s Triangle Square, built on land seized by eminent domain, now sits virtually empty.
Anaheim residents still mourn the complete destruction of their historic downtown during the 1970s by the redevelopment agency. By contrast, cities like Orange, Fullerton and Santa Ana have respected the rights of small property owners and have thriving downtowns.
Having learned from its past, the Anaheim City Council has now sworn off the use of eminent domain for private development. The new Platinum Triangle is thriving because the City is allowing greater land use freedom and flexibility—not dictating land ownership or land use decisions from above.
The role of government is to protect public safety and provide public services. It is not the role of any government to micromanage land use or dictate who can—and cannot—own property. That is the role of free enterprise, where there is a free exchange of goods and services on a voluntary basis.
The Kelo decision may become the Dred Scott case of our time. That 1854 ruling vastly expanded the power of slave owners and energized the anti-slavery movement throughout the country. Outrage over Kelo cuts across the political spectrum, from property rights conservatives to liberals defending the poor against corporate land grabs.
Bills have been introduced in Congress and numerous state legislatures to restore basic protections for small property owners. In a 365-33 vote, a House resolution expressed “grave disapproval” of Kelo. The Walters bill endorsed by the Board of Supervisors will provide needed clarity. A state constitutional amendment proposed by Senator Tom McClintock (R-Thousand Oaks) will provide longstanding guarantees for worried homeowners.
Public outrage at Kelo is strong. A recent San Francisco Chronicle poll shows 94% of voters oppose eminent domain to take land for private uses.
It is ironic that while the Supreme Court expands state land seizure powers, former socialist economies are strengthening property protections. Secure title to property is a prerequisite to economic development. We need to restore the constitutional protections stripped away by this narrow court majority.
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