Editorial: Public needs more protection from eminent domain

At some point, the pendulum has shifted too far in favor of the government and against the private property holder

Categories: Editorial, Opinion

Just because you want something doesn’t mean you can just have it.

You learn that the very first time you get your hand slapped reaching into the cookie jar without permission.

They teach you that in school. They teach it in church. (It’s Commandment No. 8.)

But apparently when people become government officials, they forget that basic tenet of life when it comes to seizing people’s land through eminent domain.

The original intent of eminent domain was for government to be able to force someone to sell their property to the government for the general public benefit.

Many people might assume that to mean for property needed for uses like a municipal water line, power line, gas pipeline, interstate or lock on a river. And even then, many feel eminent domain should be used only when the government has exhausted all its other options.

Financially struggling communities say they need eminent domain as a tool to spur their economies, sacrificing the rights of one property owner for the benefit of many.

As time has gone on, courts from the U.S. Supreme Court on down have redefined the definition of public benefit to mean virtually any public purpose that might benefit the community through expansion of the tax base or by boosting the economy through the creation of jobs and attraction of visitors. The meaning of public purpose as been expanded to include private ventures like housing developments, shopping malls, factories, sports stadiums and even golf courses and casinos.

Essentially, the courts have supported one use of private land over another.

At some point, the pendulum has shifted too far in favor of the government and against the private property holder,

A good example of the war between the economic health of a community and the private property rights of individuals has been happening in Fulton County, where residents waged a community rebellion against a proposal for the government to obtain land to convert into a proposed private retail-housing-office development in Johnstown.

The idea was for the county IDA to buy the land with taxpayer money, prepare it for development, then sell it to a private developer for its 490-acre project.

But a lone property owner was holding out for more money from the county, and he continued to resist until his death last year. Last month, the Board of Supervisors voted to move ahead with eminent domain to obtain his property. But late last week, the county completely reversed itself, voting unanimously to “cease and desist” its efforts to obtain the late property owner’s land ever again.

Whether it completely kills the project or just postpones it until another owner more amenable to a sale obtains the land from the man’s estate is unknown. But for now, the citizens who opposed this project on the grounds of private property rights have prevailed and those who supported the project for the tax- and economic benefits it would have provided have lost.

This decision could have gone either way. The state can’t continue to rely exclusively on the whims of a government board when it comes to eminent domain and economic development.

At the very least, the state needs to add more clarity to the process, both in order to provide more guidance to public officials on such matters and to protect private property owners and their supporters.

One bill pending in the state Legislature (A1328/S1553) would seek to clarify and modify existing practices through the Eminent Domain Reform Act. 

Among its provisions would be to give local governments the power to approve the eminent domain efforts of quasi-governmental organizations like local development corporations (LDCs) and industrial development agencies (IDAs). That would place more control over the process in the hands of representatives of the people most directly affected by the effort.

The bill also would require a comprehensive economic development plan be prepared in cases where eminent domain is used for economic development. This is to ensure the effort can be justified as part of a broader benefit plan for the community.

In addition, the bill will require that a homeowner assessment statement be provided to assess the actual harm to the owners of properties threatened with condemnation. It would increase compensation for targeted property owners beyond what’s already required by law to 150 percent of the total fair market value. And it would expand the time frame in which citizens could appeal condemnation decisions.

These regulations won’t eliminate eminent domain as a tool for economic development. But they might discourage governments from making eminent domain their first option, and encourage them to more often seek out private developers to develop projects and negotiate their own property purchases.

Most importantly, these changes will instill more protections in the law for property owners and ensure they’re fairly treated by the government, fairly compensated by the government, and have adequate means to appeal government decisions with regard to the seizure of their private property.

The pendulum has shifted too far in favor of the government’s whim. It needs to shift back to protection of the people’s fundamental rights.

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