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<div><font face="Arial" size="+1">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.</font></div>
<div><font face="Arial" size="+1"><br></font></div>
<div><font face="Arial" size="+1">Mark Solomon</font></div>
<div><font face="Arial" size="+3"
color="#993300"><b><br></b></font></div>
<div><font face="Arial" size="+3" color="#993300"><b>Idaho needs new
laws to protect private property</b></font></div>
<div><font face="Arial" size="-2" color="#000000">Edition Date:
07-17-2005, Idaho Statesman editorial</font></div>
<div><font face="Arial" size="-2"><b>Additional Information<font
color="#000000"><br>
</font></b><font color="#000000">The pithy ...<br>
The "takings clause" of the Fifth Amendment:<br>
"... nor shall private property be taken for public use without
just compensation."<br>
... and the protracted<br>
Article 1, Section 14 of the Idaho Constitution:<br>
"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.<br>
"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."</font></font></div>
<div><font face="Arial" size="-2" color="#000000"><br></font></div>
<div><font face="Arial" size="-2" color="#000000"><br></font></div>
<div><font face="Arial" size="-2" color="#000000"><br>
</font><font face="Arial" size="+1" color="#000000">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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
There's considerable merit to that argument.<br>
<br>
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.<br>
<br>
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.</font></div>
<div><font face="Arial" size="+1" color="#000000"><br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
"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."<br>
<br>
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.<br>
<br>
Urban renewal agencies cannot simply condemn properties at will. They
can take properties only after a city council hearing. This is an
important safeguard.<br>
<br>
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."<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
That's the price of a principle.</font></div>
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