PLF on Eminent Domain

Enemies of Property Rights Trying Hard to Stop Eminent Domain Reform in Missouri

From an article in the Kansas City Business Journal:

Spencer Thomson, a lawyer at Husch Blackwell Sanders LLP, reported during the [Economic Development Corp. of Kansas City]'s July 25 meeting that $200,000 had been raised, mostly from the St. Louis area, to have lawyers scour the petitions for invalid signatures.

"If that doesn't work, it's going to take a seven-figure public campaign to try to defeat this at the polls," said Thomson, who served on Gov. Matt Blunt's 2005 task force to study eminent domain.

PLF's Other Blogs

Don't forget to check out PLF's other weblogs, Coastal Horrors, which covers the California Coastal Commission's infringements on property rights along California's coastline, PLF on ESA, about the Endangered Species Act, and Rapanos Blog, covering the ramifications of PLF's victory in the case of Rapanos v. United States.

PLF Sues California City for "Inclusionary" Taking of Property

by Timothy Sandefur

Pacific Legal Foundation filed a lawsuit yesterday against the city of Cotati, California, for a city ordinance that violates the property rights of home builders by forcing them to provide price-controlled housing for the public in exchange for permission to build. You can read more about it here. When property owner Michael Mead applied for a permit to build eight residential units on his land, city bureaucrats demanded that he either charge less than the market price for two of his units, or hand over money to the city. In addition, both state and federal agencies demanded that he "dedicate" land off-site (meaning pay for the purchase of land somewhere else which he would not be allowed to develop) to provide land for salamanders to enjoy, despite the fact that no salamander has been found on or near the site of his project anyway.

This is, alas, typical of the burdens government places on America's wealth producers: the people who build the homes we live in and the businesses where we shop. These burdens prevent the production of new homes, thereby creating shortages that drive up housing costs. And they obstruct the creation of new opportunities for those who need homes in order to protect salamanders, plants, and insects, thereby elevating their needs above the needs of human beings. But most importantly, they violate every person's human right to private property, one of the essential guarantees of our individuality and one of the cornerstones of America's Constitution.

More on Huell Howser's Puff Piece About Eminent Domain

Larry Gilbert spoke to PBS TV host Huell Howser about why he would produce a 14 part miniseries about the supposed successes of redevelopment in California without any discussion of its failures and its costs.

When I asked him to include redevelopment stories that were not successful, or to mention that they are not all a success story as defined by the CRA, Huell stated “they (CRA) are underwriting the series…they are paying me.” So much for fair and balanced topic coverage.

Read the rest...

Prop. 99 Has Proven to Be A Sham

Former California State Senator Jim Nielsen has an important article on eminent domain in California after the passage of the League of Cities' Prop. 99:

Not even two months have passed since Prop. 99 became law and public agencies are already exploiting ways to circumvent the voter approved ballot measure that the California League of Cities, an association that represents local government, and other development interests claim provides homeowners “ironclad” protections against eminent domain abuse. 

Efforts to circumvent purported protections by the cities of Vista and Baldwin Park provide further evidence that the League and the California State Association of Counties qualified Prop. 99 for the sole purpose of defeating Prop. 98, a competing eminent domain ballot measure championed by advocates for private property rights.  Clearly, Prop. 99’s authors never intended their measure to limit government’s power to seize private property from unwilling sellers for private development given the many loopholes being exploited by local government today.

(Read the rest...)

Huell Howser on Redevelopment

The Orange Punch blog has some very interesting comments on a forthcoming public television series about redevelopment in California, hosted by Huell Howser. As Steven Greenhut puts it,

Howser has agreed to host a 14-part series that is nothing short of hard-core propaganda for one of the most nefarious organizations in the state — the California Redevelopment Association.

According to a CRA statement, “The series presents an opportunity for us to tell the redevelopment story in a compelling and intimate way. Huell and his crew will be visiting redevelopment projects in cities and counties throughout California that demonstrate inspiring, positive elements of redevelopment efforts.”

How outrageous, especially since this will be on taxpayer-funded TV and the program is funded by a group that gets its funds from government agencies.

CRA is the state’s biggest proponent of eminent-domain abuse and regulatory takings, and its agencies actively drive people off their property so that the land can be handed over for pennies on the dollar to big developers. Howser will be shilling for these corporate-welfare projects but will ignore the people whose lives have been disrupted or even destroyed by them.

San Francisco Redevelopment Agency Abandons The Mess It Made

by Timothy Sandefur

The Califoria Alliance to Protect Private Property Rights points out this article in the San Francsico Chronicle today, about the Western Addition, a 40 year old "urban renewal" failure that the San Francisco Redevelopment Agency is finally abandoning.

The latest redevelopment scheme

As part of the annual budget crisis in California, it appears that cities may be given the go-ahead to extend their redevelopment programs beyond what the law currently allows, in order to transfer still more taxpayer money to Sacramento. Dan Walters has the details:

the state would allow cities to extend the lives of their redevelopment projects – thus allowing them to keep property taxes that the projects generate – without having to meet the stringent requirements for redevelopment project extension in current law, including new findings of blight to be cleaned up. And in return, the state would be given a share of the property taxes from those extensions that would repay a loan in the $2 billion-plus range to help cover this year's $15.2 billion budget gap.

Declaring Property Blighted is A Taking

by Timothy Sandefur

Yesterday the Missouri Supreme Court issued a very interesting decision in Clay County Realty Co. v. City of Gladstone, holding that a property owner can sue the government for a regulatory taking when it declares property blighted, and then does nothing with it, thereby destroying much of the value of the property. "Considering the constitutional prohibition against takings without just compensation," the justices wrote, "this Court holds that actions for condemnation blight are inverse condemnation claims that property owners may advance in order to recover consequential precondemnation damages, such as...claims...for increased operating costs and for lost rental and lease income." This is big news, given that Missouri courts have never allowed such takings claims before.

Unfortunately, as is often the case, the court gives a great deal of deference to government officials to delay and dawdle in ways that private industries could not, and as a result it is not clear how much actual effect this decision will have. "Because some delays relating to condemnation proceedings are natural and unavoidable, before property owners have a viable cause of action for precondemnation damages, they must establish that there has been aggravated delay or untoward activity in instituting or continuing the condemnation proceedings at issue.... Where a condemning authority’s delays have not exceeded statutory limitations, the delays should not be labeled as ‘aggravated’ without additional evidence of related ‘untoward activity.’" These terms are not precisely defined.

Nevertheless, it is refreshing to see the court recognize that a blight declaration creates a cloud over property that reduces value and violates property rights.

Thanks to Dave Roland at the Show Me Institute for the pointer.

My Talk at The Dole Institute

by Timothy Sandefur

I spoke last week at the Dole Institute in Kansas regarding eminent domain and the state of property rights after Kelo v. New London. You can now watch that talk online in .wmv format by clicking here.

Why Prop. 99 Has Hurt Property Rights

by Timothy Sandefur

There is a must-read post at The Volokh Conspiracy this morning explaining why Proposition 99 is very bad news for property rights:

By defining the scope of protection for property owners as precisely as it does, Proposition 99 forecloses the possibility of such a judicial development in California. The state Supreme Court is unlikely to apply the generic term "public use" in a way that bans takings that would be permissible under the much more specific and detailed language of Proposition 99. In effect, Prop 99 incorporates into the California Constitution an extremely broad definition of "public use" that allows state and local officials to condemn almost any property they want.

Of course, that is just what people did not intend to do, when they voted for that proposition. Read the whole post.

The Sad Perversity of Eminent Domain

The Cato Institute's weblog has a very interesting post by Tim Lee on the perverse incentives created by eminent domain law: why businesses now sometimes dread the possibility of good economic times.

Eminent Domain Talk at The Dole Institute

by Timothy Sandefur

I will be speaking at the Dole Institute in Lawrence, Kansas, on Wednesday, discussing eminent domain and property rights after Kelo v. New London.

Ilya Somin on Prop. 99 in The L.A. Times

Prof. Ilya Somin has an article in the L.A. Times today, about the government-written Prop. 99. Check it out on The Volokh Conspiracy.

Eminent Domain Abuse in Birmingham, AL

by Timothy Sandefur

Our friend David T. Beito has a very interesting post about eminent domain abuse in Birmingham, Alabama.

My interview with Mark Schneidman

by Timothy Sandefur

I was recently interviewed about eminent domain in California, and about Propositions 98 and 99, for Mark Schneidman's radio show, Radio Real Estate. It will air Monday morning at 11, and again on the next Monday at 9pm and Saturday at 2.

What Would Proposition 99 Do?

by Timothy Sandefur

Many people are under the misimpression that Proposition 99—the ballot initiative supported by a coalition of government groups—would protect homes from seizure through eminent domain. The fact is that it would not, except perhaps in extremely rare circumstances.

Although the initiative declares that government would not be allowed to “acquir[e] by eminent domain an owner occupied residence for the purpose of conveying it to a private person,” another section undoes this protection for almost every conceivable case. It declares that “Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of acquiring private property for a public work or improvement.” And the definitions section states that

“Public work or improvement” means facilities or infrastructure for the delivery of public services such as education...parks, recreation...libraries...streets or highways, public transit...and private uses incidental to, or necessary for, the public work or improvement.

What this means is that a city could condemn land including owner-occupied homes, to construct a shopping center so long as it put a community center or a branch of the local library, in the shopping center. For example, the Victoria Gardens shopping complex in southern California includes a branch of the local library and a community center next to a multimillion dollar collection of stores. If a city decided to construct such a mall, and to seize owner-occupied homes to do so, Prop. 99 would not apply and the homeowners would not be protected. It would therefore be extremely easy for government officials to organize projects to avoid even the small protections provided by this initiative.

Of course, owner-occupied homes are not the typical victims of eminent domain, anyway. Usually, it’s small businesses that are targeted for seizure, since redevelopment projects take place in areas zoned for shopping centers and the like. Thus Proposition 99 would have little effect even aside from this large loophole. But even owner-occupied homes would receive very little protection from this proposal.

An Email from A Bureaucrat

by Timothy Sandefur

This morning, I received the following email from Lee Cameron, executive director of the Economic Development Corporation in Freeport, Texas, and the site of the Western Seafood eminent domain case. Mr. Cameron, writing from a government email account paid for by tax dollars, writes:

You probably don't care but I am going to tell you anyway.  Carla Main's book is a work of fiction.  The truth did not fit her purpose so she eagerly accepted the spoon fed version given her by Wright Gore.  Gore is a master manipulator and has been the antagonist from day one.  Thre would have been no eminent domain proceedings in Freeport if he had not attempted to stop the development.  The Gore family considers the river as their private property and their attack on Freeport is all about greed and power.  It's as simple as that.

Lee Cameron

Well, the public can read Ms. Main's excellent book and judge for themselves whether it is family business owner Wright Gore--or ambitious bureaucrat Lee Cameron--who is really "all about greed and power."

(I tried responding to Mr. Cameron's email, by the way, but he had blocked me.)

Why Prop. 99 Will Do Nothing to Protect Property Rights

The Institute for Justice has prepared an important analysis of California's Proposition 99, the eminent domain initiative sponsored by an alliance of government agencies. You can read it here. IJ concludes,

Prop 99 will provide insubstantial protection against the use of eminent domain for private commercial development. Small business owners will continue to lose not only their buildings, but also their incomes. All farmers and working class renters are at risk.  Homeowners may not even be protected. Californians require real, substantive reform for everyone and Prop 99 does not come close to providing it.

Epstein on the Didden Case

Here's an article by University of Chicago law professor Richard A. Epstein on the awful Didden v. Port Chester case which the Supreme Court declined to hear last year. Here's the brief that Pacific Legal Foundation filed in that case. Excerpt:

[O]ur Supreme Court remains on a constitutional holiday. Over and over the justices blithely assume that conscientious planners acting in good faith are entitled to ample discretion in allocating the costs and benefits of our social life. Sounds great on paper, but the sorry saga of Port Chester shows that when it comes to real estate, we have a government not of laws but of politicians. In matters that they really care about, like race and free speech, judges are quite capable of seeing through airy abstractions to harsh realities. Why can't they do the same for property rights?

More here by Prof. Ilya Somin.