[Vision2020] Statesman on eminent domain

[Mark Solomon]

Here's a very good analysis of the ability of Idaho entities to 
"take" private property under the takings clause and its relation to 
the recent US Supreme Court ruling. It makes it easy to see who  was 
influential in writing Idaho's constitution.

Mark Solomon

Idaho needs new laws to protect private property
Edition Date: 07-17-2005, Idaho Statesman editorial
Additional Information
The pithy ...
The "takings clause" of the Fifth Amendment:
"... nor shall private property be taken for public use without just 
compensation."
... and the protracted
Article 1, Section 14 of the Idaho Constitution:
"RIGHT OF EMINENT DOMAIN. The necessary use of lands for the 
construction of reservoirs or storage basins, for the purpose of 
irrigation, or for rights of way for the construction of canals, 
ditches, flumes or pipes, to convey water to the place of use for any 
useful, beneficial or necessary purpose, or for drainage; or for the 
drainage of mines, or the working thereof, by means of roads, 
railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or 
other necessary means to their complete development, or any other use 
necessary to the complete development of the material resources of 
the state, or the preservation of the health of its inhabitants, is 
hereby declared to be a public use, and subject to the regulation and 
control of the state.
"Private property may be taken for public use, but not until a just 
compensation, to be ascertained in the manner prescribed by law, 
shall be paid therefor."



Just about everybody except city officials has pounced on the U.S. 
Supreme Court for declaring that it is constitutional to condemn 
private property for economic development.

Far be it from us to stand in the piling-on crowd's way. We disagree 
with the court, too. We hope the court will reverse itself at the 
next opportunity. In the meantime, we think the Legislature should 
respond with a law to restrict such forcible takings in Idaho.

But those who think, as Rep. C.L. "Butch" Otter, R-Idaho, said in a 
news release, that "it's that kind of revisionist interpretation of 
the Constitution that has placed so much of our public life at the 
mercy of appointed judges and creeping statism," should stop their 
judicial bashing long enough to review a few facts.

The court, in a 5-4 ruling, said economically depressed New London, 
Conn., could condemn homes to make way for a 90-acre development to 
complement a new Pfizer Inc. research park. One woman had lived in 
her house for 87 years. The court said economic development - the 
prospect of new jobs, added tax revenues, improved waterfront access 
and the chance to build momentum for urban revitalization - 
constituted a legitimate public purpose similar to those courts have 
approved in other cases over the past 50 years.

There's considerable merit to that argument.

First, consider the U.S. Constitution. The Fifth Amendment says 
private property shall not "be taken for public use, without just 
compensation." Government agencies have taken private property for 
public use for more than 200 years for everything from prisons to 
military bases. If the local highway district decides to build a road 
through your living room, you can kiss your castle goodbye. It's 
called the power of eminent domain. All the founders said is that the 
government must pay you a fair amount.

Next, consider Idaho's Constitution, statutes and case law. The state 
constitution explicitly authorizes use of eminent-domain power to 
build reservoirs, irrigation ditches and mines. The Legislature has 
passed laws giving even private parties the power to exercise eminent 
domain for canals and mines. And state courts have ruled that the 
Idaho Constitution's authorization of eminent domain for "any other 
use necessary to complete the development of the material resources 
of the state" means eminent domain power can be used to benefit 
private lumber companies. If you own a scenic mountain hideaway, you 
should be nervous if any mining or timber companies take interest in 
your property.

In other words, the threat to private property from eminent domain 
for someone else's profit has been legal in Idaho for a long time - 
and not just because of liberal judges.

There's more. Forty years, ago, the Legislature passed the Urban 
Renewal Law of 1965. It allows cities to condemn property to 
rehabilitate decayed neighborhoods. Boise's redevelopment agency used 
that law to forcibly acquire downtown properties between Capitol and 
Ninth streets and between Bannock and Front streets for a mall.

The agency even tore down some of those buildings before Boise Towne 
Square was built four miles west and the downtown mall plan was 
abandoned. Today more than 20 Idaho cities operate urban renewal 
agencies, including Garden City and Meridian. The law remains in 
effect, and the power to condemn backs every "willing buyer-willing 
seller" property acquisition those agencies make.

"One of the critical elements of an effective redevelopment effort is 
to consolidate land into a larger parcel that can be economically 
dealt with," said Phil Kushlan, executive director of Boise's Capital 
City Development Corp. "A problem for decaying urban centers is that 
often you have a whole lot of very small ownerships that are 
disassociated with each other. Nobody has a large enough parcel to 
make it economically feasible to reinvest."

No one has made a case that agencies like Kushlan's are abusing their 
power in Idaho. Indeed, the Institute for Justice, a libertarian 
think tank in Washington, D.C. that examined takings in all 50 states 
from 1998 to 2002, could not find a single taking for private benefit 
in Idaho.

Urban renewal agencies cannot simply condemn properties at will. They 
can take properties only after a city council hearing. This is an 
important safeguard.

But in the end, it's not safeguard enough. Retiring Justice Sandra 
Day O'Connor got the Fifth Amendment right in her dissent when she 
said the court's ruling means nearly any building could be replaced 
by one generating more tax revenue or providing some other public 
benefit. "The specter of condemnation hangs over all property," she 
wrote. "Nothing is to prevent the state from replacing any Motel 6 
with a Ritz-Carlton, any home with a shopping mall, or any farm with 
a factory."

The court said states remain free to enact legislation to prevent 
that from happening. Idaho should. While a state law lacks the power 
of a federal constitutional requirement, Idaho should control what it 
can.

The Legislature should pass a bill to prohibit the forcible 
acquisition of properties that meet building codes and other legal 
requirements and cause no community harm. If urban renewal or other 
agencies want to acquire those properties, they should do so the 
American way: by negotiating to reach a mutually satisfactory price.

People who have worked all their lives to build a home, farm or 
business should not have all they have achieved shoved aside against 
their will to make room for a big-box retailer or a condominium 
complex.

This new law should not prohibit local authorities from condemning 
blighted buildings that threaten health or safety. But lawmakers 
should make sure, as a safeguard, that there are public hearings 
before elected officials whenever eminent domain is used - not just 
in condemnations by urban renewal agencies.

And Idahoans should realize that purchase negotiations sometimes 
fail. That means desirable redevelopment projects sought by a 
majority of a community's residents and leaders, whose taxes could 
help hire police or educate children, might not come about if this 
law is enacted.

Some property owners won't sell at an appraised value. Some will 
refuse to sell for reasons that have little to do with money. Some 
worthwhile economic-development projects will get away.

That's the price of a principle.
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