L. Neil Smith's
Number 250, December 7, 2003

Remember Pearl Harbor

More Government Running Amok
by Charles Stone, Jr.

Special to TLE

A shorter version of this article was published on Bureaucrash

In my previous article describing how governments are using the doctrine of eminent domain the steal private property from legal owners, I related the tale of the Gateway Motor Speedway and its' shennanigans in concert with the Southwestern Illinois Development Authority (SWIDA) to seize property for a parking lot. Well, it seems that the organizations that run race tracks find the government a wonderful conduit for predatory land acquisition.

The State of Kansas has has become one of the most egregious offenders as they have allowed the Kansas Motor Speedway to shanghai private property it wanted, among many others. In Topeka, a contractor lost his business to clear the way for a Target distribution center. There may be some resistance forming in Kansas though, in Merriam, voters gave four City Council incumbents their walking papers in 1999, largely because of their stand on eminent domain..

Even worse is the State of Michigan where eminent domain has been used to take private property from its rightful owners to build casinos and even private housing. In Detroit, a new GM plant sits where hundreds of small businesses and private homes once stood. And it isn't just the actual seizure of property that causes harm to a community, it is the collateral damage caused as nearby owners bail out for fear that they too are on the list.

It should surprise nobody that the State of California, that bastion of neo-socialism, also likes the idea of using the guns of government to take land for what they perceive, in their infinite wisdom, to be the public interest. San Diego mugged a bunch of middle class people to build a new ballyard and "entertainment center." Three small businesses had to go so the city fathers could give the land to a Price Club. [link]


Below is a section of the Arizona State Constitution regarding eminent domain and how it should be used:

17. Eminent domain; just compensation for private property taken; public use as judicial question

Section 17. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for mining, agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner, secured by bond as may be fixed by the court, or paid into the state treasury for the owner on such terms and conditions as the legislature may provide, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefore be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. (Emphasis added)

In 1997, the state legislature effectively gutted the Constitution's protection and now allows local governments to seize private property for any reason they may choose, even the most preposterous. If a locality decides a piece of property has "no diversity of ownership" or if there are streets that are "inadequately laid out" or the property is seen to be "deteriorating" the municipality can just gobble it up. Of course, any slick bureaucrat worth his salt can come up with any number of preposterous appellations to rationalize the seizure of almost any property.

Note: I received an email from Arizona lawyer David Euchner about the above and I decided that the best way to handle it would be to just cite it as sent.

"I am a practicing attorney in the state of Arizona and I do some volunteer pro bono work for the Institute for Justice. An update is required for this page.

Everything that written above in the section about Arizona is correct, but it is not up to date. The 1997 statute was struck down in part by a state court of appeals on October 1 in the case of Randy Bailey dba Bailey's Brake Shop v. City of Mesa. Because the 1997 statute was not struck down in toto, it will be at least a couple of months before we see what is actually left of it."


In more breaking Arizona news, in Maricopa County, eminent-domain laws are being used by an Arizona court to force a landowner to continue to rent space to the County even though they had failed to agree to terms of a lease extension.

Tha Arizona Republic reported that the owner of a strip mall in West Valley, Ariz., Orsett/Columbia Ltd., has had a lease with the county since 1989 Peoria Justice Court. That lease expired in July and the landowner wanted a five-year lease extension. The government, however, only wants the space for two more years and has taken the company to court to force it to comply with the county's demand.

"This means municipalities can identify a space they want and force a landlord to lease it to them," Mike Freret vice president of development for Orsett/Columbia Ltd., told the paper. "It may mean that if the space they want already has a business owner in it, they could boot them out."

"We think the statute and the Constitution allow governments to rent, but governments can only take what they need," Irvine told the Republic. "We only needed it for a couple of years, and the court didn't want to waste three years of taxpayer money."

Which seems to be a typical bureaucratic excuse for abuse of the rights of a property owner.

In a major surprise, at least to me, CBS' 60 Minutes had a segment on how the town of Lakewood, Ohio is trying to condemn over 50 private homes, a dozen businesses and 4 apartment buildings to allow for the construction of high priced condos and a fancy-shmancy shopping center. In order to accomplish this little piece of government extortion, the politicians once again had to torture the English language. They redefined all the subject property as "blighted." Lakewood set a standard for blight that would include most of the homes in the neighborhood. A home could be considered blighted if it doesn't have three bedrooms, two baths, an attached two-car garage and central air. Ironically, the term "blighted" in this definition would apply to the homes of the mayor and most of the city council, but don't worry. After they steal the property they want, they'll simply change the definition again to keep their own property safe.

The City of Denver is planning to condemn a shopping center whose tenants are reluctant to give up their businesses for the sake of a WalMart. (The shopping place of the people again, are we seeing a pattern here?) "We're doing this because it's the right thing to do," said John Huggins, director of the mayor's office of economic development. Oh? Right for whom? For the rightful property owners or for a bunch of political hacks who will use the increased tax revenues to buy more votes or for a predatory corporation who cares not a whit for the damage they may cause?

Occasionaly though the little guy wins as in Lancaster, CA where the City Council was slapped down by a federal judge who called an eminent domain scheme a "naked transfer" of property from one private business to another.

Unfortunately, there aren't nearly enough successes to make up for all the losses to individual property owners and even more to the Constitution of the United States as greedy governments find out how easy it is to screw private property owners while they graciously accept whatever loose change may fall their way.

Note: In another slap at property rights, the Nevada state Supreme Court ruled 4-2 on Monday, 09/29/2003 that the city of Las Vegas could use eminent domain to seize private land in downtown Vegas and turn it over to other private establishments. [link] The case involved property owned by a local family. The Las Vegas redevelopment agency seized it so that a parking garage could be built by casino interests.

Note 2: In late breaking news. In my own neck of the woods, The City of Daytona Beach is about to use its guns to steal the property of two Boardwalk businessmen to turn it over to a major developer. In a stunning blast of mindless abnegation of the right of Americans to own property, this statement appeared in a local newspaper:

"No one wants to employ the use of eminent domain. I don't want to do it. Honest, I don't," (Daytona Beach) Mayor-elect Yvonne Scarlett-Golden said Wednesday. "The issue here is development of the Boardwalk area."

Sorry, Madame Mayor-elect, the issue is a government agency misusing its power to take property from its legal owners and transfer it to someone better able to line the pockets of local politicos.

To see just how bad the abuse of eminent domain has become, the Institute for Justice has a comprehensive representation of the nation-wide problem at: http://www.ij.org/index.shtml

Copyright © Charles Stone, Jr. 2003


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