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February 22, 2005

End Eminent Domain Abuse

Most of us have heard of eminent domain: the government's right to condemn (and force the sale of) private property, making it available for public use. But most of us learned that the power of eminent domain was only to be used in limited cases; to put a road or a bridge through an already-developed area when there was no other practical route, for instance, or to erect a government building that would be used by all citizens.

Recently, however, the power of eminent domain has been enlarged way beyond its original scope:

You may not know it, but your home is for sale.

Across America, government and big business are teaming up to condemn people's homes and replace them with shopping centers and megastores such as Costco, Ikea and Home Depot. In fact, from just 1998 to 2003, there were 10,000 reported cases of cities and states condemning or threatening to condemn homes and businesses to make way for private companies to expand.

Consider the following eminent domain cases:

■ Randall Bailey’s Brake Service was condemned by the city of Mesa, Arizona after the owner of a local hardware store decided Bailey’s property would be a better location for his expanded operation.
■ Carol Pappas’s apartment building was condemned to make way for a parking garage for eight privately owned and operated casinos in Las Vegas.
■ New Rochelle, New York offered to condemn 15 acres of land housing 200 residents to the Swedish furniture giant IKEA to boost retail development in the city.
■ The city of Lakewood, Ohio wanted to condemn the entire West End neighborhood of well-kept, moderately priced homes because planners and the city council decided a complex of private retail and commercial businesses was more suitable for the site.

How does the government justify taking private property from individuals and selling it to private businesses?

Try increased tax revenue and job creation - increasingly, cities and towns use economic development as an excuse to compel the transfer of private property from one private party to another. Eminent domain has even been used for urban redevelopment when a city decides there is a "better use" for land than for the individuals who paid for it to continue living in their homes.

Today the Supreme Court will hear arguments as to whether any limits should be placed on the government's definition of "public use". In Kelo vs. New London, a town decided private land would be "better used" for a hotel, a health club and a marina. The fact that none of these businesses constitutes a public use didn't faze the town one bit: they maintain the town will benefit from the higher tax revenues and jobs created by the new businesses:

The problem with that argument is that most businesses benefit the public. If our homes can be taken away whenever bureaucrats decide that somebody else would use them more effectively, then our property rights will be rendered meaningless.

It doesn't take much to expand "we only require a public benefit" to "from each according to his ability, to each according to his need". Private property ownership is one of the fundamental rights guaranteed by the Constitution. Timothy Sandefur argues:

When Kelo is argued before the court, the justices will be asked a simple question: Does "public use" mean the government can take people's homes and small businesses and resell the land to Pfizer, Donald Trump or other private parties?

The answer should be no. Everyone, rich or poor, should have the same right to be secure in their homes and businesses. Otherwise, our property rights will be only permissions granted by the government -- and revokable at will.

Posted by Cassandra at February 22, 2005 07:32 AM

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Tracked on February 22, 2005 03:07 PM


I'm no raging tax warrior... but ask yourself this: Do you, in fact, own your home?

Answer - in most places, no. Whatever you think.

Regardless of what the deed says. Whether or not the mortgage is paid off.

You rent the right to own that home and the land it sits on from your local government.

If you don't believe/understand that - try not paying your property taxes and find out how fast they sell your home from the steps of the county courthouse in a Sherrif's sale (or however your jurisdiction does it).

You'll have a check for whatever they sold the house and land for, less the taxes and service charges... but you *won't* be sleeping in it tonight. The new renter of the franchise will.

Posted by: John of Argghhh! at February 22, 2005 02:45 PM

It's worse than that here in Fredneck. If you don't pay your water bill they can condemn your property to pay for it.


Posted by: Cassandra at February 22, 2005 03:10 PM

In many states any judgment can be levied against your home. That is called paying your bills.

Using the power of the state to take you home for another private use is (1) wrong (2) not what was intended by the 5th Amendment. The safety net is at least you can litigate what "just compensation" is and try to get fair market value for the house (less atty fees unless you can recover them if you win as in a few states). This is a huge case -- this abuse is growing nationwide. Georgia, fresh with a new Republican controlled Gov, House and Senate, has a bill on the table to allow this type of abuse by any government entity. The bill is currently dead, but it was introduced by a Rep. and it is not going to go away without some more efforts. So much for the conservative revolution here. They did pass lots of tort reform effective yesterday I am still trying to get clear (could they ask an attorney to draft this stuff? would that be too much to ask?).

Posted by: KJ at February 22, 2005 04:16 PM

Hey, I understand creditors can attach real property KJ, but we're talking a very minor debt here that doesn't require the sale of your home, but the law is structured so that's the first thing they go after. That's pushing it - you wouldn't believe the water wars out here. If you're renting your home out, you're endangering your ownership of said property.

We had to get a copy of the water bill every month while we had renters, because if THEY defaulted, the county could take OUR home.

This is a debt I didn't owe.

Posted by: Cassandra at February 22, 2005 04:31 PM

KJ: I hadn't heard about the lawyer shortage in Atlanta which prevented the legislature from having counsel review the statutory language. How embarassing! Your elected representatives scurrying around in desperation to find anyone able to practice law must have been an interesting sight!

Cass: I am proud to say that my fabulous state of Arizona has been very restrictive about eminent domain. The Mesa Brake shop case was a hot topic down here, and everyone cheered when Mesa lost.

A few years ago, Scottsdale went down in flames in the Pingitorre case when the enviro-wackos passed a really harsh restrictive zoning ordinance "to protect the environment". The court held that, by effectively preventing utilization of the land by private property owners, Scottsdale was engaged in a "taking" and thus must go through the eminent domain process and pay fair compensation for the land. Given land prices in Scottsdale, this was never going to happen so the City backed down AND got hit with a ginormous attorneys fee bill from the victorious property owners.

I'm glad Arizona is solidly conservative. The only problem we get is all the blue-state transplants that try to turn us into California or New York. At this point, though, there's still more of us than them.

Posted by: a former european at February 22, 2005 06:11 PM

All my Dad's side of the family are from Arizona, afe - my Dad was born in Bisbee. My grandma is buried in Sedona and I still have a lot of aunts and uncles and cousins out there.

I love the desert, though I'm more of a high desert type. But I really loved living in Joshua
Tree - it was one of the most beautiful places I've even been.

Posted by: Cassandra at February 22, 2005 06:17 PM

And there is Sherriff Arpaio. I loved AZ when we lived there. Truly a bastion of conservatism, and we lived there when Barry Goldwater was the Senator.

I live in GA now, and I registered to vote here, so I need to keep up with the legislature and rouse people to call their state critters.

If there is one thing I hate it is a corporate entity in the form of local government that uses my property for infrastructure.

So, afe, do they still have open/concealed carry out there?

My true spiritual home is Oak Creek Canyon or the Air Force's travel camp at the mouth of the canyon as you leave Flagstaff. Jerome is nice too.

And you know why all the bsers are heading your way; it is because socialism failed with the wrong people in charge. Tell them if they don't like out your way, to move back to the liberal hell hole they escaped or ask them why they moved. That always gets the CA transplants.

Posted by: Cricket at February 22, 2005 07:24 PM

Cricket: I say the same. It really ticks them off. After all, those libs had the BEST of intentions so how could there have POSSIBLY been negative consequences?

And yes, we probably have one of the most permissive conceal/carry laws in the US. You'll still see a lot of older cowboys carrying firearms openly in a holster even today.

Another funny thing is that every election they try to put propositions on the ballot permitting the formation of "temporary" toll roads. They keep losing with 80-90% against. Too many midwesterners and east coast people down here to fall for that one. As a transplanted Chicagoan, I remember how all those freeways were only promised to be "temporary" tollroads -- about 50 years ago. I guess they meant "temporary" on a cosmic scale like the age of the galaxy. It used to cost me 5 bucks to go cross-town.

Fool me once, shame on you ......

Posted by: a former european at February 22, 2005 07:56 PM


There is an "anti-lawyer" trend here in Georgia. Many new legislators aren't lawyers. Many of the committees don't have one lawyer. They are drafting legislation. Believe me, even though I like some of the provisions of this bill, it is full of unnecessary ambiguities.

One bill allows parties to make an "offer of judgment" to the other side. If the other side doesn't do 25% better at trial than the "last" rejected offer of judgment, they have to pay the otherside's attorney's fees. Fine. Now, the law allows all parties to do the offer of judgment. Is the "last" offer the last offer of all the parties, or just the "last offer for each party? If the former, do you contantly have to send a new one so yours if the last one when the case goes to trial. If the latter, here is another problem. What if both sides make offers of judgment, and the result is not 25% better for BOTH sets of offers? Can both sides recover their attorney's fees from the other side? Do the "double entitlements" cancel out? Who knows. That was never envisioned in the legislation. It took most of my partners about 3 minutes to see these holes.

Posted by: KJ at February 22, 2005 07:58 PM

Intamate domain is unconstitutional and should be repealed its time that all such laws were repealed including THE BRADY LAW THE 68 GUN CONTROL LAWS THE ENDANGERED SPECIES ACT and every one of king williams(clintons)royal decrees(executive orders)and its time for a constitutional amendment that prophbits any forgein control or protections on anything with in the USA and that includes all the WORLD HERATAGE SITES in the USA and lets get our country out of the UN and get the UN out of the USA

Posted by: mad heron at February 22, 2005 09:48 PM

There's a dangburned newfangled eenvention called "punctuation", Hoss. Try usin et fer a spell. Tomorry we'll talk about somefin called "the wheel".

KJ: Agreed. But Georgia doesn't have a monopoly on poorly written legislation. The Arizona legislature passed a law for corporations in which clause "A" contradicted clause "B", leaving everybody scratching their heads as to how to get their companies to properly comply with the law!

Posted by: a former european at February 23, 2005 01:31 AM


That is what makes federalism such a great system. Every state should have the opportunity to experiment f***ing up its own legislation.

Posted by: KJ at February 25, 2005 10:29 AM

Law 2: Nothing is ever so bad that it cannot get worse.

Corollary to Law 2: No law is ever so bad that it cannot be made worse by having it written by a federal committee.

Posted by: Murphy at February 25, 2005 10:57 AM

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