Years ago, a Christian evangelist friend of mine complained about doing the Lord’s work in the South. Everyone is a Christian there, he lamented, whether or not they really are one. His point was well taken. It is hard to separate the wheat from the chaff, which is a problem not just for Christian evangelists but for those of us who spend time advocating political ideals.
Everyone in America believes in freedom, or so they say. And everyone believes in property rights. Yet many of those same people will eagerly support antifreedom and especially anti-property-rights laws. If the public really cared about property rights, we would not see a continuing flurry of measures that strip owners of their property through eminent domain or of the value of their property through environmental and other regulatory “takings.”
Recently, some local activists wrote an article supporting a local initiative that would subject almost every new private development to a citywide vote. It is difficult to imagine anything more antithetical to the traditional concept of property rights. Subjecting property rights to public vote is akin to having “free-speech” rights, provided everyone gets to vote in advance on what you plan to say.
The activists agreed “that protection of property rights is important.” But then they went on to redefine what “property rights” means. Their understanding of “property rights” does not in any way resemble mine, which makes for frustrating arguments, the likes of which my evangelist friend would understand.
Government officials, environmental groups, and citizens have subtly shifted their conception of what it means to defend property rights. In their world, we are all stakeholders. The view from my house to your vacant land is a property right, which deserves as much protection, supposedly, as your right to develop that land. And government has the ultimate right to determine whether your property is being appropriately used.
In the summer of 2005, the U.S. Supreme Court upheld a plan by the city of New London, Connecticut, to condemn well-maintained houses, many of which had been in the same families for generations, to make way for an upscale redevelopment that included commercial buildings and condominiums. In Kelo v. City of New London, a majority comprising the Court’s five most liberal members declared that the city could use eminent domain to transfer properties from one set of private owners to another as long as the new owners’ use of the land would potentially be of greater economic benefit.
The Court agreed with a subtle shift from the Constitution’s approval of eminent domain for public “use”—e.g., roads, schools, government-owned buildings—to public “benefit” (i.e., any project that officials say will benefit the overall public). Hence, a project that brings in more tax dollars amounts to a “greater public benefit,” and, hence, traditional property rights go out the window. The Court left it up to the locals to decide, although it allowed for the possibility that state and local laws could be amended to prevent abuses.
Many Americans have the misguided idea that property rights were secure before the ruling but are no longer so. In reality, property rights were not secure before the ruling. The Court missed a chance to fix the problem, but it did not create a new right or strip rights that were formerly enjoyed.
Perhaps the most egregious current example of what the Court has upheld is taking place in Riviera Beach, Florida, a predominantly black, working-class city of 32,500 in northern Palm Beach County. In 2001, officials there commissioned a study to determine whether blight exists in the community. Not surprisingly, the city’s consultants found a massive amount of blight, covering about one third of the community. In Florida, as in many other states, eminent domain can be used for economic development, provided that blight is discovered.
I have yet to see a consultant who specializes in such work ever to find that there is no blight in the community. The job is to find blight, and, over the years, consultants have come up with the most fanciful definitions of blight. This has become something of a game, even a scam. In one California city, blight amounted to some chipping paint on buildings. In another case, a rural mountain enclave was called blighted because of excessive urbanization. Underutilization is another justification for blight. That means the property is used at “less than its potential.” I have seen desert land blighted and relatively new shopping centers called blight—to justify a city’s desire to build a new and improved shopping center on the same site.
One Riviera Beach property owner conducted her own survey, according to a report in the Los Angeles Times.
For three months she walked the streets of Riviera Beach photographing houses classified as “dilapidated” or “deteriorated” by specialists hired by the city. The official study, she said, was riddled with errors and misclassifications. Lots inventoried as “vacant” . . . actually had homes on them built in 1997, she said. One house deemed “dilapidated,” she found, was two years old.
This is par for the course in the world of eminent domain. Blight designations are legal fictions designed to allow the government to take property. As other cities routinely do, Riviera Beach selected developers to create a new downtown. City officials talked about economic depression, the city’s need for jobs, and the lower-than-average incomes of the people who live there. They want their city to look like other nearby waterfront cities with upscale shopping and tourist magnets. So city officials are setting the stage to drive about 6,000 residents out of their homes and businesses to make way for this new project.
I have been to Riviera Beach; its main “problem” is that it is far less upscale than Palm Beach and other tony nearby beachfront cities. That is all it comes down to—that, and the new tax revenue that presumably will flow into the area from the new stores and businesses. Even though the city’s mayor and key advocate of the redevelopment project is black, it is easy to see this as an example of what many critics of eminent domain call “ethnic cleansing.”
In Southern California, redevelopment officials tend to target heavily Latino areas or commercial strips with businesses owned largely by immigrants. It is not necessarily that officials sit down and say, “Let’s drive these minorities out of our city.” When they look for less-affluent areas with less-costly real estate, however, it is no surprise that they identify neighborhoods filled with working-class people, the elderly, ethnic minorities, and first-foot-on-the-ladder businesses.
It is particularly disturbing that cities are emboldened to find property that is quite nice and then transfer it from its current owners to wealthier ones. In a Lakewood, Ohio, eminent-domain case profiled by 60 Minutes, city officials trumped up a blight designation to attempt to drive out middle-class owners in charming historic homes overlooking a beautiful city park. Officials did not want such people enjoying the best view in the city, so they designated their homes blighted because they lacked air conditioning (near Lake Erie) and attached garages (in early-20th-century homes). Near Lake Elsinore, California, county officials tried to drive retirees out of their old bungalows and trailers—an area called a poor man’s Shangri-La by a judge—because the neighborhood happened to be near the lake, and officials likely wanted fancy homes in the spot.
So it goes for Riviera Beach. Why should working-class black people live in ranch houses and operate small businesses near the intercoastal waterway and ocean? Those places should be reserved for wealthy people and major chain stores. That is the logic behind what the officials are doing.
Government should not use eminent domain as frequently as it does for public projects, such as the building of new highways; a highway is not necessarily better than the neighborhood it is built upon. However, it is at least clear where the limits are with such a use of eminent domain. But under the new definition of eminent domain, government gets to decide what constitutes a “public benefit,” and grievous abuses are even more likely to occur. Now government picks the winners and losers, and government can decide that you should not live in your own house because someone else with more money is more deserving of the view.
The Institute for Justice, the Washington, D.C.-based legal think tank that argued on behalf of the Kelo property owners before the Supreme Court, has posted a list of about 140 similar ongoing eminent-domain cases nationwide. In California City, California, “City officials declared over 700 acres of Mojave desert land, owned by 246 owners, ‘urbanized’ and ‘blighted’ and condemned it for a Hyundai/Kia auto test track.” In Baltimore, “80 acres of homes and businesses north of the Johns Hopkins medical campus in East Baltimore are being razed and redeveloped into a biotech park.”
In case after case, it is the same story. Developers go to city officials, who use eminent domain to take the property to build a town center, or a commercial development, or a Wal-Mart, or condos, or whatever else city officials prefer to be on that site. They use any legal tactics that are necessary and, of course, follow a legal, albeit Orwellian, process for taking over someone else’s land.
This is the opposite of what the Founding Fathers envisioned. It is central planning, period. Sometimes, the big projects, such as Riviera Beach, get attention because of their scale. When cities pick off property owners one or a handful at a time, however, it is hard to muster public support to stop it. In Des Moines, in an up-and-coming area known as the East Village, record-store owner Bill Hamilton bought some properties “before the East Village became hip,” writes the Des Moines Register’s Laurie Mansfield. Now that the area has become hip, the city wants to clear away buildings, such as Hamilton’s, which are in the way of what developers want to build there.
One councilman “told the Register he was not going to let the issue die because ‘we’ve got people standing in line to buy those buildings over there,’” reports Mansfield. “‘Thanks for trying to act as an unwanted real estate agent here. . . . But just because someone wants someone else’s property is not a good reason to take it.’” Fortunately, the property owner is at least getting some favorable coverage—a rarity given that newspapers tend to be part of what the Wall Street Journal’s John Fund calls LOOT (Leaders Of Our Town).
For instance, the Sacramento Bee argued on December 5, 2005, that the use of eminent domain to take the 17,300-acre Conaway Ranch between Sacramento and Davis is a good application of that power. “It is essential for habitat. And it has valuable water rights that are important to Yolo County. The existence of such a large ranch in the 21st century in the center of this region is an extraordinary asset.”
In the new scheme, private property is viewed as a public asset. If it is nice enough, then expect that someone else will want it and will use court-approved justifications to take it. If you expect a true market price for the property, good luck. These eminent-domain takings are more like what one professor calls “growth capture.” Municipalities look for areas that are starting to increase in value and take the property, paying the current price for land that will soon be worth much more.
The planned taking of Conaway Ranch is fascinating because, in this case, eminent domain is being used for environmental purposes. “This will prevent the land from being squandered by the runaway growth and development we have seen throughout the Sacramento Valley,” said a county supervisor. The Rumsey Band of Wintun Indians has offered to finance part of the county’s purchase of the ranch, according to the Sacramento Bee, raising suspicions that an Indian casino might eventually be developed on that “pristine” property.
An Oregon judge recently overturned a 2004 ballot initiative known as Measure 37, which guaranteed “Oregonians whose property value has been curbed by land-use rules either payment from the government or a waiver of the restrictive regulation,” according to an Oregonian news summary. The judge was incensed that Measure 37 restricted the government’s power to regulate land use. The state supreme-court appeal (beginning in January) will have important nationwide implications, especially as neighboring Washington considers a similar property-rights measure.
Oregon residents suffer under some of the most restrictive land-use rules in the nation, and Portland is ground zero for “smart growth.” The idea is to concentrate growth in central cities, outlaw or severely limit growth on open space outside cities, and slow suburbanization. Although the idea of small, compact cities and vast open space is appealing to many people across the political divide, the smart-growth movement is not content simply to overturn pro-sprawl regulations and to provide market-based alternatives to the typical cookie-cutter subdivision. Smart growthers favor Portland-style growth boundaries, metropolitan governments, and other central planning to force Americans to choose the kind of urban lifestyles they prefer. It is perhaps the most direct assault on property rights that is coming across the horizon.
The end result of all of these examples is the opposite of what British Prime Minister William Pitt said at the turn of the 19th century:
The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail. Its roof may shake, the wind may blow through it—the storm may enter, the rain may enter, but the king of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.