A 50 year plan: Eminent domain/property rights

I actually wasn’t going to do this particular subject yet, but I received an e-mail at work yesterday that bothered me and I wanted to share my reaction. In turn, since I’d planned on doing a “50 year plan” post on the issue anyway, this was as good of time as any to do so.

Recently, partially at the behest of my company but moreso to keep my continuing education requirements straight (and maintain my architectural license) I rejoined the American Institute of Architects after a hiatus of about 5 years or so. So now I’m a member of AIA Chesapeake Bay instead of AIA Toledo, but the national song seemingly remains the same.

I figured out that my membership had gone through when I started receiving AIA e-mails at work, which I have zero problem with. But yesterday’s e-mail was a newsletter called The Angle, which documents their political lobbying efforts and other related items the AIA pursues. Part of this newsletter was soliciting input for an AIA position statement, as follows:

Proposed Position Statement 46 – Eminent Domain

The American Institute of Architects believes that eminent domain is a critical tool for revitalizing our cities and improving the quality of life in urban and suburban neighborhoods. State and local governments must ensure that eminent domain laws do not curtail smart growth efforts, brownfield cleanup, or otherwise limit new development and improvements to existing development.

Well, since they asked for my input, they got it…

I would feel much better about this if the statement read as follows:

“The American Institute of Architects believes that eminent domain is a critical tool for revitalizing our cities and improving the quality of life in urban and suburban neighborhoods. While the AIA acknowledges and agrees that private property rights are paramount in our free society, we also feel that state and local governments can and should balance the rights of existing property holders with eminent domain laws that do not curtail smart growth efforts, brownfield cleanup, or otherwise limit new development and improvements to existing development.”

As I read it, the AIA is taking a position of property holders be damned, we just want to develop sites regardless of who’s hurt in the process and all these damn libertarians who insist on actually following the “takings clause” in the Fifth Amendment are just meddling with our profession.

Many eminent domain proceedings in the last decade have stretched the term “public use” way beyond its intent. Personally, I do not believe in government using its power and taking one’s private property to benefit another person simply for additional tax revenue.

And so begins this portion of what I’ve come to call my “50 year plan.” It’s pretty simple, really. The Fifth Amendment to the Constitution reads, in part, as follows:

(N)or (shall a person) be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis mine.)

In 2005, the United States Supreme Court handed down what’s popularly known as the Kelo decision. In a 5-4 decision (Stevens, Kennedy, Souter, Ginsburg, and Breyer the majority; O’Connor, Rehnquist, Scalia and Thomas found for Suzette Kelo) the Court held that, despite the fact that “the city is not planning to open the condemned land – at least not in its entirety – to use by the general public.” They noted, “this…Court long ago rejected any literal requirement that condemned property be put into use for the…public.”

You know, sometimes the Supreme Court gets it wrong. The idea behind eminent domain was to allow the taking of private property for a public use, such as a highway, airport, or a building that would be owned by the taxpayers rather than a private entity. But in the case of Suzette Kelo, her property would be used by a private developer – a developer who was planning on developing the land to boost the city’s tax base.

In the time since, many states have enacted laws to prohibit this practice. According to the Castle Coalition, 34 states either have a prohibition on this practice or strengthened its position on the law in 2006. Maryland is not one of them.

There is a fairly weak reform bill in the hopper in the Maryland Senate this session, SB3. A similar bill last session, also SB3 (along with HB1137), was referred back to committee once it was amended to change from a legislative matter to a Constitutional amendment by an amendment from Senator Allan Kittleman. (The House bill did not make it out of committee at all.)

Interestingly enough, the eminent domain power in Maryland has not been used much recently for “traditional” items such as highways, airports, government buildings, etc. The heaviest user of eminent domain in recent years has been the Maryland Stadium Authority, as they cleared out blocks of homes and businesses to build, among others, M&T Bank Stadium and Oriole Park at Camden Yards.

I like the idea of a Constitutional amendment at the state level, as long as the amendment clearly states that the power of eminent domain is to be used only for the public good and not to enrich one powerful private entity at the expense of a class of lesser entities as happened in New London, Connecticut. Theoretically, the federal level is already taken care of in the Fifth Amendment; all that needs is a Supreme Court which remembers that our laws are based solely on what the Founders wrote, not what they feel is in our best interest at the time or on incorrect precedents.

Because this eminent domain issue has a fairly simple solution and can be settled rather quickly, it’s one of the easiest planks to rectify in my 50 year plan. So I’m going to expand on the subject a little by talking about private property rights and other property issues.

Obviously in our nation one has some restrictions on property rights, which are mostly common-sense sorts of things. For example, it would not be a good idea if I built a rifle range in the midst of a residential area. If I had complete property rights theoretically I could do this, but most areas have some sort of zoning to prevent such incompatible uses from occurring on adjacent plots. Generally things like usage, setbacks, building area as a percentage of a lot, and building height are covered. These can also be waived if the property owner presents a compelling reason to do so in front of an elected or appointed local body.

However, I see a trend where government is restricting land usage by regulation. A recent example was embodied by the number of National Monuments established by President Clinton by his interpretation of the Antiquities Act of 1906. Whereas national parks need Congressional approval, in many cases national monuments do not. Clinton established a total of 19 national monuments, mostly in the final year or so of his term. While much of the land was already federally owned, this action also further restricted its usage. With the strokes of his pen Clinton placed over 5 million acres of land out of reach to mining and development. (That’s about 2/3 of the size of Maryland.) By comparison, President Bush has enacted just one land-based national monument of about 1/3 acre in New York City. A summary of concerns can also be found here.

While local zoning codes are generally fair, the scale of regulation of private property by the federal government is much less so – and much harder to combat. Another area of regulation that concerns me is hypersensitivity by people concerned with environmental issues such as endangered species. A number of projects have been thwarted nationwide because some so-called endangered species MIGHT have a nesting ground or habitat there. While there’s a case for preserving habitat, the balance is currently way too far in favor of militant environmentalism at the expense of economy.

Now I’ll shift my focus to a more local level.

In last year’s state election, Maryland voters unwisely placed the General Assembly in charge of the disposition of state land rather than retaining it under executive authority. This ballot issue arose from the proposed sale of state land in St. Mary’s County to a developer – something I personally had no problem with. Just like the argument in the Kelo case about the economic benefit to the city of New London, the land in question could have possibly benefitted the coffers and overall economy of St. Mary’s County. But in this case government took the opposite side.

Ideally to me governmental entities will own the least amount of land necessary to function. Further, land that is owned by the government should be as free of restrictions to private use as possible. While development would have limits, something where the public good outweighs the risks (such as drilling for oil in the Arctic National Wildlife Refuge) can be done if managed properly and carefully.

This portion of the 50 year plan will take much longer to implement than the eminent domain issue will because again it’s going to take a sea change in attitude by the powers that be. The more land they have, the more power. It’s going to take a forceful voice from the people to make government give back to the private sector what is rightfully theirs.