Commentary: Property Rights, Politics and Policy

By Benita M. Dodd

The 2005-2006 legislative term has already seen at least three dozen pieces of legislation that reference eminent domain, the authority of government to take land from a private property owner. Some enable it, justifiably; others would curb it. More will come. Enough red flags are up already, however, to warrant repeating Margaret Thatcher’s warning: “This is no time to go wobbly. We can’t fall at the first fence.”

The Legislature’s taking action. So why should Georgia property owners worry? At numerous turns, legislation to restrict government’s power to take private property is being eroded. Vested interests cite the need to remove so-called blight in communities, concerns about holdout landowners in redevelopment projects and about the ability to secure parcels large enough to attract economic development projects. And some of those who Georgia voters have elected to represent and protect their rights just could succumb at the first fence. Politics could triumph over good policy.

It is up to this General Assembly, like others across the nation, to ensure government unequivocally respects takings for public use only. Private property rights must remain paramount. John Adams reinforced it: “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”

What happens if an owner doesn’t want to sell? Deal with it. Donald Trump asked the Atlantic City (N.J.) redevelopment authority to condemn Vera Coking’s property because he needed it for a limo parking lot for his casino. The constitution trumped Trump and Coking kept her home, reportedly so close to Trump Plaza that the water from the sprinklers hits her windows. Trump called Coking’s home ugly; Steven Greenhut, author of the eminent domain book, “Abuse of Power,” points out: “It’s the little guy who needs the Constitution more than anyone else.”

What happens if property is defined as blighted, a threat to health and public safety? There are fines and citations from ordinances and public health statutes that enable government to penalize, to take action to clean it up, then place liens on property. Foreclosure is another tool. Eminent domain is hardly the first resort in blight cases, and it need not be the last, either. There is a simple test: Where other alternatives exist, the blunt instrument of eminent domain should be taken off the table.

After the 2005 U.S. Supreme Court ruling in Kelo v. New London, Georgia leaders stepped up to the plate and adamantly vowed to protect private property rights in Georgia. Taking private land for public use – or public purpose, as Georgia’s Constitution calls it – is acceptable, they said, but Georgians should never worry that their land will be seized for any other reason.

But the nation’s highest court allowed the taking of Susette Kelo’s home in New London, Conn., simply because government found a prettier, more profitable use for it in private development.  Then the court threw down the gauntlet, saying, “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”

This session is evidence that historic good intentions of past legislatures provide no guarantees for the future in a bureaucracy enabled by Kelo. Already, legislation that passed the Senate in 2005 is showing wear and tear from proposed changes. Other bills would simply redefine blight or who in government would have the power of eminent domain. One proposal, for a commission, sounds reasonable on the surface, but limiting the powers of government by expanding government is cause for concern, as is who oversees the commission.

Condemnations in so-called blighted areas for redevelopment purposes and improving the tax base, and even some condemnations for so-called public purpose, have come to be stretched beyond belief with nebulous definitions and little recourse for property owners.

Ask Mark Meeks, who is fighting the city of Stockbridge, which believes it has found a better “public” use for the “slum” land on which his florist shop sits. Meeks, whose case went to a Henry County judge in November, believes he can hold onto his land if legislators expedite a proposed moratorium on eminent domain.

“The city doesn’t have vested title to our property,” he said Thursday. “If the Legislature moves fast enough, we will be protected.

“For us it’s very important that we get legislation or a moratorium to save our property.”

Rejecting social engineering by government – eliminating blight and redevelopment as justification – is the only sure way to avoid abuse of eminent domain authority.

Back in 1953, the Georgia Supreme Court succinctly stated that the state’s redevelopment laws were unconstitutional: “If the property of one person can be taken for another for this purpose, where does the power of eminent domain stop? …. It is argued that the legislation should be sustained for the reason that the public will be benefited. Maybe so, but we can not subscribe to the doctrine that the power of eminent domain may be resorted to and a person deprived of his property every time there may be some public benefit resulting. To hold so would be to cut the very foundation from under the sacred right to own property.” The Legislature came back with a constitutional amendment allowing redevelopment.

With a moratorium in place, legislators will have time to craft a thoughtful, airtight constitutional amendment for voters, one that will preserve eminent domain, protect property owners and deter seasonal whims in a fickle Legislature. The Founding Fathers never intended to make it easy for government to take private property: This is no time to go wobbly.

Benita M. Dodd is vice president of the Georgia Public Policy Foundation, an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (January 27, 2006). Permission to reprint in whole or in part is hereby granted, provided the author and her affiliations are cited.

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