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An eminently bad idea

A lot of attention has been given to the legal concept of Eminent Domain of late. I decried its attempted use to replace a Building 19 with a Wal-Mart Super Center. Lucius over at SondraK's site is on a tear. And it's a recurring theme at The Volokh Conspiracy.

The common element in these cases seems to be the use of Eminent Domain to seize private property in the name of "economic development." And that, to me, is just wrong.

Now, I'll admit that I have a bit of a bias against eminent domain. When I was younger, the town re-did its sewer system. In the process, they decided to ED an easement through our property for a sewer line, severely injuring (probably fatally) two beautiful century-old oak trees that provided tremendous shade and would probably end up costing us a fortune to have taken down and removed. My father went ape over this, developing an almost-psychotic obsession that caused my mother and I no end of anguish. It eventually went through, but the harm done to my family never healed, right up until their deaths.

But that aside, I can understand the other side. The sewer had to be built, and the most logical place to connect the two streets was right through our property. These things happen.

But nowadays, ED is being used for "economic development." That seems to be bureaucratese for "taking Joe's property and giving it to Big Company X, who promises us lots of jobs." That, to me, is just plain wrong.

I think I have a simple, elegant solution. The idea of ED is "taking private property, in the people's name, for the common good." I suggest a few simple restrictions, in that spirit, to guarantee that the original intent of ED is followed.

1) Property taken in the name of the people should be owned by the people. Period. It should never be sold to any private entity. But if it must, then the original owner should be given the right of first refusal, at a cost substantially less than the amount paid to them when the property was originally taken.

2) Property taken in the name of the people should be controlled by the people. It should not be leased to any private entity until it is first offered to the original owner, at a small fraction of the original price paid. For example, if City X gives Joe $200,000 for his house and tears it down for a Store X, then they can't lease the land to Store X until after Joe has had a chance to lease it back at a discounted price -- say, $5,000 a year. If Joe should then want to turn around and sublet to Company X, that's for them to work out.

3) Private property taken in the name of the people should never be used for any for-profit purpose. If a company wants to celebrate capitalism and make lots of money off a hunk of land, let them start off in a properly capitalistic vein and pay what the owner demands for his property. Getting the local government to do their dirty work for them combines the worst of both systems -- the tyrannical power over private property of socialism, and the unfettered greed and seflishness of capitalism.

And beyond that, it smacks of the worst form of bullying to me -- of "might makes right." We're supposed to be better than that, and we need to remind ourselves of that from time to time.



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Comments (23)

My issue with the direction... (Below threshold)

My issue with the direction Eminent Domain is taking, isn't so much that it is being used by the States to take property from one person and effectively reassign it to another.

My concern is that where a state defined use of Eminent Domain once existed, no matter what happens in Kelo vs New London we are going to see the door opened to a universal or Federally defined eminent domain.

No matter which way the SOTCUS finds, they will have taken a power that the States had previously held and limited it, or forever altered how the States look at it.

The way I see it, in a case like Kelo vs New London the people allowed the State to have this broad power defined under State law. That is how our system should work, don't like the eminent domain laws? Either get the laws changed, or pack up and move to another State (NV, MN, and AZ have some of the toughest eminent domain laws on the books which sharply limit when, how, and for what purpose property can be seized).

Now we run the risk of losing that, because once a Federal standard has been applied it won't take long for someone to challenge the State laws as "Unconstitutional". And I'm not just talking about some enterprising developer convincing a cash strapped city or county they could be put some farm land to better use than some poor debt ridden farmer...and do it legally no matter what the State law says.

I'm also talking about the poor farmer (although I'd be on his side) who blocks the seizure of land even though its legal in the State he lives in.

In an ideal world this would have been settled at the state level and been rejected without comment by the SCOTUS. In our less than ideal state of things, the best I can hope for is that they find in favor of New London but attach a poison pill under the "fair compensation" clause that effectively would make it too expensive to be applied with force. Maybe a third generation type of law that says each year the state will provide the owners and the decedents of the previous owners the change in the fair market value for the property each year for three generations.

"seize" not "sieze" ... (Below threshold)

"seize" not "sieze"
its the exception to the exception.

Ok, now I know the point yo... (Below threshold)

Ok, now I know the point you were trying to make. The other post on this was not cohesive. I don't know if you remember the state widening Route 101 but every house along that stretch of property had to be removed making it very difficult for those who lived there and for taxes to come into the town of Exeter. Route 101 just about wiped us out; I know that because I was the secretary who took notes - which is why the junior high school is sitting there empty and those grades are now going to Stratham. ED is not a good idea - when they get these ideas ask if they could find out what the final consequence could be. We lost almost a hundred home. Now adding this on makes the original post cohesive. The Federal and State Governments have eminent domain of all property. Sure it's faster now, wider now but I hated to see those homes go.


Simply, Bravo!You ... (Below threshold)

Simply, Bravo!

You and I are of like minds on this one, Jay Tea. This is a pet peeve of mine and has been for years though ED has never been imposed upon me personally. It's just an affront to personal freedom in many cases and, as you eloquently said, "the tyrannical power over private property of socialism, and the unfettered greed and seflishness of capitalism." Another trump card to empower the state is the threat of condemnation. I think if I heard that, I'd first get weak-kneed. Then I'd start considering that Second Amendment.

You are absolutely right.</... (Below threshold)
Just Me:

You are absolutely right.

People shouldn't have their private property taken so a town can build a bigger Walmart or hotel.

Of course, the reason 100 h... (Below threshold)

Of course, the reason 100 homes in Exeter were leveled (and the project had been held up the 25 years as most of those houses were built) is because Rte. 101 couldn't take a more logical route through a few acres of mosquito-ridden swamp -- er, excuse me, sainted wetlands. As if N.H. had any lack of wetlands, the glaciers left us with 60% swamps and lakes. And never mind the 100 people who died in head on collisions, while the EPA held up the road.

You sound like a communist ... (Below threshold)
Rob Hackney:

You sound like a communist to me Jay. " Never be sold to any private entity."

Yeah, you sound like a communist to me.

If ED has to sometimes be used for the GREAT GOOD ( as the authorities at the time see it at least ) then let them do it. It's our CIVIC DUTY to help improve the nation. BUT, let them pay fair market value for whatever they are taking. We are capitalist obviously, so let things be bought and sold.

Your idea to 'lock up' future infrastructure from ever being run efficiently by private hands is at best rediculous, and at worst has you sounding like some drug addicted SOCIALIST.

You sound very young to me, and as such, must not have learned much of how we make this country great. You must serve your country as much as it serves you.

One of the comments said th... (Below threshold)
Tom Moore:

One of the comments said the land ED should only belong to the people. What about power lines? The routes are EDed all the time by utilities but the only thing they pay for and own is the "right of way". The owner still owns the property and pays property taxes on it....but he can't really use it for anything except farming and such.

Rob, read it again. I was o... (Below threshold)
Jay Tea:

Rob, read it again. I was only speaking of properties seized under Eminent Domain. If (to use the Nashua example) Wal-Mart wants Building 19's property for a SuperCenter, let them make an irresistible offer. If Nashua wants to give that property to Wal-Mart, then they should make the irresistible offer to Building 19.

I consider it unconscionable for a private business to attempt to gain advantage over another business by getting the government to intervene on their behalf. When the attacking business is as huge as Wal-Mart is, and their victim is one as small as Building 19 is, I find it moving beyond unconscionable to obscene.

My objection to what I consider the abuses of Eminent Domain is its utter violation of property rights -- something utterly anathema to communists. If there's something about Communism that discourages government from taking property from private parties, I haven't heard about it. Would you care to enlighten me, Rob, and cite a source or two?


Geez, Jay, you write an ele... (Below threshold)

Geez, Jay, you write an elegant and logical treatise on ED and you manage to bring out a hackneyed troll in the process. I didn't know you were THAT talented. Or a communist. And a young one at that.

Your principles are all swe... (Below threshold)

Your principles are all swell and libertarian, but when you get down to facts they make for tough cases. Even in a very uncrowded world with very few "public goods," the framers of the Constitution understood the necessity of eminent domain. They understood this at a time when there were very few reasons why anything had to be built in any particular place. The reason is that certain forms of economic development -- whether owned by the state or owned by private investors -- cannot occur if the last landowner can extort monopoly "rents" from a blocking position. For example, if you want to build a road (whether or not it is owned by the state), the last landowner to sell required land (call him the "blocking landowner") along a particular stretch would be in a position to charge an extortionate price or prevent the project entirely. The power of eminent domain was meant to prevent that extortion. The landowner still gets paid the fair market value for the land, just not the monopoly rents from being the last seller.

I have struggled with this issue for a long time. Certain cases are very distressing politically -- the "Poletown" case, for example, where General Motors was able to have an entire ethnic neighborhood condemned to make room for the parking lot of a new factory (if I remember right). But in today's crowded world, virtually no economic development (whether or not owned by the state) of any magnitude could occur without the power of eminent domain. Your proposal would result in one of two outcomes -- no more big projects would be possible, as a practical matter, or all big projects would be owned and operated by the government, which would cause the state's share of the economy to rise. I find neither result very palatable.

ED is also used to help dev... (Below threshold)

ED is also used to help development in an area where property owners have esentially abandoned it to slum and blight.
Rundown, empty buildings that are home to little more than rats, snakes and kids looking for a place to have sex or shoot up.
A lot of small-town downtown revitialization efforts would be impossible if the city couldn't acquire the property -- at fair market value -- and get rid of the cancerous deadbeat owners.
I would agree that if businesses or homeowners are there then the idea of having a stricter standard should apply, but you can't just slam the door entirely without cutting out a lot of good.

I wrote my thoughts on Kelo... (Below threshold)

I wrote my thoughts on Kelo here, though I know I have mentioned eminent domain before on my blogs. My opinions are sufficiently strong that I believe I mentioned it as an item in my old "111 things about me."

If the Supremes find in favor of New London in Kelo, we may have to work on an amendment along the lines of what you noted above. Call it the "and we mean it!" Amendment with respect to the 5th.

While I agree with your des... (Below threshold)
Corky Boyd:

While I agree with your desire to restrict eninent domain to public use only, historic precedents probably will not allow The Court to sustain such an argument.

One of the great major uses of eminent domain was to develop the American railroads, especially the trans-continental railroad. This was a massive giveaway to corporations, with alternate 1 square mile sections being the carrot to spur development of markets and towns along the right of way in order to make that massive capital investment profitable.

The current situation has gotten out of hand. Unlike the railroad situation where there is an abolute need for contiguous aquisitions, it is less necessary in the case of Wal-Mart who not only wants a desirable property, but wants to put a competitor out of business.

Hopefully The Court will see the difference.

Corky Boyd
Sanibel FL

Well, You know what all thi... (Below threshold)

Well, You know what all this is about. It about what everything is about. $$$$. They offer enough money ANYONE will move. Unless they happen upon th domain of a millionare, then you have the problem. Doesn't happen much.
The case stated in U.S. News and World report quoted the woman as saying that she wouldn't be able to afford a house overlooking the river, which is what she wanted. I am thinking that giving her enough money to by able to do that would make this all go away. I can't believe the company would go this far without doing that. They must be paying as much in court costs. Something else must be up with them. Power, I suppose.

P.S. Lucius over at Sondra's place should never wear a spagetti strap when taking a pic. ALWAYS a shirt guys..ok?

Interesting how this is the... (Below threshold)

Interesting how this is the ONE issue where most Right and Left wing folks come together and agree on...

But, all the news sources are rambling for hours on the Pope and any small town news they can find, as if they are trying to ignore this whole thing.

Oh, yea, and as the Supreme Court makes this ruling that effects ALL of us... we still are worried about two dudes kissin with a wedding ring on? Welcome to the new morality!

"We can STEAL from you, but at least you don't have a fag livin' next door. Eh skeeter?"


Neal Boortz has been singin... (Below threshold)

Neal Boortz has been singing this tune for a LONG time. Check him out. www.boortz.com

All this "controlled by the... (Below threshold)

All this "controlled by the people" crap sounds like more damn Communist claptrap to me. What's wrong with Private Enterprise and the Free Market that you need to start going all squishy Liberal about it. Put down the copy of Marx manifesto and back slowly away.

Minnie,I'm confuse... (Below threshold)


I'm confused here. How is it that it's Communist to believe that; when you a PERSON buy something on the FREE market, are against it being taken away from you by the government by force for less than it is worth to you.

Interesting how your scope of vision of the free market only applies to large corporations, government, and those rich enough to bribe the government to steal from others.

If you buy property as an investment, and then Wal-Mart comes along and says: "Hey, I'm gonna bribe the government to steal your land so I can make millions." you would consider that "Free Market".

Wow, shallow, wrong, evil, and completely idiotic.

It's NOT Marxist or Communist to want to PARTICIPATE in the FREE market. What you want IS Communist, or at least you just want to keep it so huge corporations can kick you OUT of the free market by stealing your private property.

Are you sure the Walmart Vs... (Below threshold)

Are you sure the Walmart Vs Building 19 is a case of Eminent Domain. It sounds like Building 19 is leasing the land and the landowner wants to find a new tennant.

Oh,It's an Eminent... (Below threshold)


It's an Eminent Domain issue allright. No one wants to sell that land, but Wal Mart wants it. There is a current lease being held, but the owner, would LEASE the land to Wal Mart.

But, since Wal Mart being the most evil corporate entity in the world today doesn't want to play by the rules of the Free Market, they bribe some gov't officials to condemn land and then take it over in the name of more tax dollars.

Sorry, that's a little Socialist/Communist for my blood. There's a long growing list of tons of companies doing this now, since Wal Mart has set a trend.

Take a peek: http://www.emdo.blogspot.com/

Eminent Doamin could be the... (Below threshold)

Eminent Doamin could be the case. But in the original sotry, I saw little to indicate that Eminent Domain was being invoked. Granted Walmart has benefited in other areas where such action was threatened. I do not approve of it.

I did not see EMinent DOmain being used in the original story in this case.

The principle of "ownership... (Below threshold)
Zell Miller:

The principle of "ownership" is what is at stake here. Do we truly own our property or is it "temporary ownership" until some well connected fat cat developer has a better idea?

There might be a time when eminent domain is needed such as a needed highway, or a water line; but those times should be limited and only when they benefit public, not private interests.






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