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NYT Forum Debates Eminent Domain

sam.staley@reason.org (Samuel Staley) — Mon, 16 Nov 2009 08:34:00 EST

Last week, the drug maker Pfizer announced it would close its research and development facility in New London, Connecticut. The Pfizer facility was at the heart of the city's decision to use eminent domain to seize and raze an entire neighborhood to make way for the development project and prompted the now infamous Kelo v. City of New London. According to the New York Times:

"Pfizer said it would pull 1,400 jobs out of New London within two years and move most of them a few miles away to a campus it owns in Groton, Conn., as a cost-cutting measure. It would leave behind the city’s biggest office complex and an adjacent swath of barren land that was cleared of dozens of homes to make room for a hotel, stores and condominiums that were never built.

"The announcement stirred up resentment and bitterness among some local residents. They see Pfizer as a corporate carpetbagger that took public money, in the form of big tax breaks, and now wants to run."

The Kelo case is named after Suzette Kelo, who argued with the help of the Institute for Justice in Washington, D.C. that the government simply couldn't seize her property and hand it over to another private party because their intended use would be more profitable. The U.S. Supreme Court disagreed, and said, in effect, that as long as the city officially said seizing her house (and others in the neighborhood) served a public purpose that's all they needed to use eminent domain. The decision effectively gave a green light to takings for economic development purposes, and the Institute for Justice has been documenting rising levels of abuse since then.

Well, now the entire project in New London has gone down the tubes. The failure of the economic development project and the implications for using eminent domain for economic development purposes were the subject of a New York Times forum "Room for Debate" last week and has prompted nearly 200 responses.

Among the formal contributions include law professors that argue that the Constitution really was never meant to restraint government's taking of private property anyway as long as compensation is paid to the victims. Interesting, most of the formal responses focus on the political ramifications rather than the abandonment of private property protections by the judiciary and elected officials.

More on Reason Foundation's work on eminent domain and regulatory takings, including our amicus brief on Kelo, can be found here.

Quiet Victories on the Regulatory Takings Front

leonard.gilroy@reason.org (Leonard Gilroy) — Tue, 13 Oct 2009 21:10:00 EDT

I recently ran across two interesting news articles on the regulatory takings front, but they need a little background to put them into context. As I discussed at length in this study, regulatory takings are essentially the flip side of eminent domain, where the uses of private property are restricted not through a wholesale acquisition of the property by government (as in eminent domain), but rather are effectuated virtually by regulations like development codes and environmental mandates.

In essence, rather than taking a landowner's property outright, governments routinely pass regulations that restrict the use of private property (such as local zoning laws, farmland preservation ordinances or the Endangered Species Act, for example) to the extent that it represents a virtual "taking," a major loss in economic value due to government restrictions on land use.

When a landowner has paid full market value for a property, and that value is based on the development potential at that time, government effectively pulls the rug out from under that landowner when it changes the rules of the game later such that the potential value can no longer be achieved. When private landowners bear the burden of providing public benefits in this manner—and when that economic loss to the landowners merits compensation from the government—it's known as a "regulatory taking."

As I discuss in the study referenced above, the courts haven't exactly been helpful on regulatory takings. Essentially, over the years they've validated the idea that there are such things as regulatory takings that merit compensation. But beyond that, the courts haven't done much to offer clear guidance on what actually constitutes a regulatory taking. Even worse, the court system is essentially rigged to keep potential regulatory takings cases bouncing around in an infinite administrative loop such that it becomes very difficult—and costly—for an aggreived landowner to even get a case into the legal system to begin with, much less receive any compensation for adverse government regulatory action.

Hence, it was interesting to see the recent news alert from the Nossaman law firm on some recent developments on this front in the federal courts:

"All bark and no bite." Typically, that is a fair description of regulatory takings litigation: the litigation generates a lot of noise and gnashing of teeth but, at the end of the day, rarely are government agencies bitten with an order that they pay compensation. But a new opinion from the federal Ninth Circuit Court of Appeals, Guggenheim v. City of Goleta (Sept. 28, 2009, Case No. 06-56306), demonstrates that regulatory takings litigation can have teeth. In Guggenheim, the Ninth Circuit holds that the City of Goleta's rent control ordinance on mobile home parks went too far and that the City will have to pay the park's owners just compensation. This case, particularly coupled with two other recent regulatory takings cases, Monks and Casitas, suggests that agencies may now need to pay close attention to their regulations if they hope to avoid a regulatory takings bite.

The other article to highlight comes from Flagstaff, Arizona. For context, Arizona voters passed Proposition 207 in 2006, which not only tightened the state's eminent domain laws to prevent abuse, but also required governments to either offer compensation to landowners or issue waivers related to any new land use regulation (outside of those enacted to protect public health and safety) that lowers current landowners property values. The Goldwater Institute's Clint Bolick wrote an excellent overview of Prop 207 in Reason Foundation's Annual Privatization Report 2009 that's well worth a read.

As Bolick writes, there have been a number of property rights victories in the wake of Prop 207, and governments now have to clearly think through the potential economic impact of any proposed land use regulations before they consider passing them, lest they open themselves to numerous Prop 207 claims. The latest example comes from an Arizona Daily Sun article discussing how Flagstaff is considering a new form-based code to guide the future development of its downtown area, but they're structuring it as an optional code so as not to trigger Prop 207 challenges:

Roger Eastman, the city's zoning code administrator who is overseeing the overhaul, said the form-based codes will encourage incremental changes in the city's urban core while preserving its historic character. [...]

Under the new proposed zoning codes, which have not been approved by the Flagstaff City Council, a developer could conceivably erect a three-story building covering most of the property, including over the existing parking lot, in exchange for following the form-based codes.

The current zoning would not allow for such a large building because the owner would likely need to provide for more on-site parking, not less.

But Eastman said a form-based code would not require on-site parking if the downtown parking plan includes a parking garage. He said the city can offer incentives like less parking, smaller setbacks and a streamlined approval process to encourage developers to use the form-based codes.

Eastman points out that even if the proposed zoning is approved by the City Council, it would be entirely optional for property owners.

A state law passed in 2006, better known as Prop 207, has made the city of Flagstaff reluctant to rezone private property without the owner's consent. The law requires cities to compensate property owners for any value lost due to new regulations.

Property owners could continue to use the underlying zoning already in place for any development plans, Eastman said.

This says a few important things. Despite the false, "sky is falling" rhetoric one usually hears from urban planners about how regulatory takings reform will bankrupt governments and decimate planning, it doesn't actually work that way in practice. Flagstaff is on the verge of passing a large-scale planning overhaul involving form-based codes, one of the trendiest regulatory approaches among professional planners right now. All they had to do to make it kosher from a property rights/regulatory takings perspective was to make it optional. Then you're not taking anyone's current rights away but creating a parallel mechanism offering a streamlined, revamped regulatory system for those who choose to take advantage of it. Win-win; property owners win, planners win.

What this demonstrates is that it's far easier to graft property rights into current planning systems than the professional planning community assumes or acknowledges. Regulatory takings reform in Arizona prompted planners and policymakers in Flagstaff to think twice before proposing a blanket form-based code to replace the existing zoning. Considering the property rights implications upfront caused them to adjust the model slightly to make it more landowner-friendly, flexible and dynamic.

With the tough economic times that cities are facing these days, I'd argue that the more dynamism and flexibility on the land use front, the better.

» Reason Foundation's Eminent Domain and Regulatory Takings Research and Commentary

Private Developers Have No Right to My Home

info@reason.org (Daniel Goldstein) — Tue, 13 Oct 2009 13:23:00 EDT

Over six years ago Bruce Ratner—a top political contributor and law school friend of then Gov. George Pataki—asked Pataki to use eminent domain to seize 22 acres of prime Brooklyn real estate and hand them over for his Atlantic Yards development plan. By way of comparison, the Ground Zero site is 16 acres. The taxpayer-subsidized project would be 16 skyscrapers and a professional basketball arena for the New Jersey Nets team Ratner bought as leverage for the land grab (and just conditionally sold to Russia's richest oligarch, Mikhail Prokhorov).

These 22 acres happened to include my home and my neighbors' homes and businesses—a slice of an ethnically, racially, and economically diverse, mixed-use neighborhood undergoing steady, healthy growth.

On October 14th our landmark case challenging this abuse of eminent domain to enrich and enormously benefit a powerful and politically connected developer will be argued at the Court of Appeals—New York's high court. The oral argument and eventual ruling will be historic.

"Public use,” required for eminent domain, has come to mean something other than construction of roads, parks, hospitals, schools, railways, etc. It has transmogrified into some amorphous, highly speculative "public benefit" or "public purpose," which could be anything a developer with government "partners" declares it to be.

The Supreme Court's infamous 2005 Kelo ruling alerted many Americans to this perversion of the Fifth Amendment of the U.S. Constitution.

Kelo also awakened many state legislatures and courts. Forty-three states have made post-Kelo eminent domain reforms in order to return eminent domain closer to its original intent, and give meaningful security to homeowners that they're more than temporary placeholders for wealthy, well-connected developers.

New York's legislature is one of the seven that has not acted. Though they did put on an act. Hearings were held in both houses. But proposals for legislation never made it out of committee and after the immediate national post-Kelo uproar subsided, the legislature moved on to its regular, and notable, dysfunction.

So everyday New Yorkers have been left unprotected and undefended by our elected officials. With such a non-responsive legislature, the only place to turn has been the courts, the great equalizer. Thankfully, we have this showdown with the state's most powerful and abusive condemning authority—the Empire State Development Corporation.

New York's Constitution says that property can be taken for a "public use." Not a "public benefit" or "public purpose." No New York State Constitutional Convention or legislature has ever seen fit to change this language or amend it. "Public use" means "public use." But again and again New York has approved eminent domain condemnation for projects, such as Atlantic Yards, that benefit private entities at the public's expense—so not only are they not for "public use," they are not even for the "public benefit." It's time for this to stop.

When eminent domain is used in service of building a school, a railway, or a hospital, we know what we'll get. But when "economic development" is the justification, we have no idea what we'll get except for false hopes, false dreams, and happy talk, along with a land grab windfall for the developer and theft of homes.

In the case of Atlantic Yards the so-called "benefits" are illusory at best. No attempt has been made by the condemning authority or the lower court to weigh the public versus private benefits; meaning there has been no cost-benefit analysis of the project and no analysis of the developer's benefit. But it doesn't take a degree to see who gets the very short end of the stick.

Thirty-one months after Atlantic Yards was unveiled we learned, for the first time, that the "public benefit" of the project was the removal of "blight." But the proposed takings area was not "blighted" in 2003 no matter how permissive a definition of "blight" one may apply. That said, what now passes for "blight" bears no relationship to the slum problem encountered by the City in the 1930s, when eminent domain was utilized for “slum clearance.”

In the 1930s the people of this state and the Court of Appeals understood that slums posed an "extraordinary threat to public health and safety," and "are the breeding place of disease" where the "public evils, social and economic, of such conditions, are unquestioned and unquestionable."

Prospect Heights, where the project is proposed, is the antithesis of that description, as is nearly any other neighborhood in New York state. But when the state deems a neighborhood "blighted", and then takes it, just because there are some weeds, or sidewalk cracks, or something called underutilization, then all of us in New York are vulnerable to eminent domain abuse.

Calling the Atlantic Yards site "blighted" was an obvious post-hoc justification to enable eminent domain in a state where "blight" has been erroneously interpreted to mean whatever the state determines it to be. And if all the state has to argue to justify seizing properties is some speculative public "benefit" or "purpose"—based on some contrived "blight" declaration—then what exactly isn't a "public use"?

My co-plaintiffs and I are not asking for much. We're simply asking for the state's constitutional Public Use Clause to be applied, which, despite the cries of the vested interests, will not stymie development in New York City. If it is not applied, then today our homes can be seized in an abusive manner, but tomorrow it will be your home just because some politically connected, backroom-dealing rich guy can get his cronies to determine that his enrichment is somehow for the public's use.

Daniel Goldstein is the lead plaintiff on Goldstein et al. v. NYS Urban Development Corp (d/b/a Empire State Development Corp.) and a co-founder of Develop Don't Destroy Brooklyn, Inc. This column first appeared at Reason.com.

Report: Widespread Eminent Domain Abuse in New York State

leonard.gilroy@reason.org (Leonard Gilroy) — Thu, 08 Oct 2009 12:57:00 EDT

The Institute for Justice has released a new report detailing eminent domain abuse in New York State, one of the handful of states that failed to see any racheting back of its condemnation laws in the wake of the U.S. Supreme Court's Kelo vs. City of New London in 2005. In that decision, the Court upheld governments' use of eminent domain to take private property from one owner and give it to another private owner, not for the development of legitimate public uses like highways or schools, but purely for the purposes of economic development and tax revenue generation. This controversial decision set off a property rights firestorm that led to more than 40 states passing legislation, constitutional amendments or ballot measures to rein in the practice (to be fair though, less than 10 states actually passed reforms with teeth).

From the IJ press release:

New York is one of the worst states in the nation when it comes to abusing eminent domain for private gain, according to the Institute for Justice, which tracks such abuses nationwide.

The Institute for Justice, which litigated the infamous Kelo eminent domain case before the U.S. Supreme Court, today released a report that documents example after example where government officials across the Empire State used eminent domain not to create projects that would be owned and used by the public—such as a courthouse or post office—but, rather, to create private development that would financially benefit politically powerful private developers.

The report, "Building Empires, Destroying Homes: Eminent Domain Abuse in New York," states, "Over the past decade, a host of government jurisdictions and agencies statewide have condemned or threatened to condemn homes and small businesses for the New York Stock Exchange, The New York Times, IKEA, Costco, and Stop & Shop. An inner-city church lost its future home to eminent domain for commercial development that never came to pass. Scores of small business owners have been threatened with seizure for a private university in Harlem and for office space in Queens and Syracuse. Older homes were on the chopping block near Buffalo, simply so newer homes could be built. From Montauk Point to Niagara Falls, every community in the Empire State is subject to what the U.S. Supreme Court has accurately called the 'despotic power.'" [...]

In addition to documenting examples of eminent domain abuse across New York, the report also spotlights problems in New York state law when it comes to eminent domain and suggests solutions the courts and the Legislature can implement to ensure everyone keeps what is rightfully theirs to own.

The report warns, "New York law not only makes it easy to condemn property, it actively encourages city agencies to do so. A variety of incentives are in place to motivate cities to create redevelopment zones, and to invite private developers to use government force to obtain the private properties contained in them, instead of negotiating in the free market. In this perverse system, city agencies and private developers are actually encouraged to team up together against local property owners." [...]

"The rate of eminent domain abuse in New York is simply staggering," said Christina Walsh, the Institute’s director of activism and coalitions. "We have worked with property owners statewide to fight the most egregious abuses, but state and local government officials seem to have no limit on their ability to dream up ways to abuse eminent domain."

Download the full report here. It couldn't have come at a more opportune time, as the state Court of Appeals is going to hear arguments next Wednesday on Goldstein v. New York State Urban Development Corporation, the first post-Kelo eminent domain case heard by the state's high court. IJ offers some background on that case here, and the amicus brief it filed in the case is here.

For other recent headlines on the property rights front, see Reason Foundation's Annual Privatization Report 2009.

When Public Power Is Used for Private Gain

info@reason.org (Damon W. Root) — Thu, 08 Oct 2009 11:10:00 EDT

In December 2003, Bruce Ratner, a New York real estate tycoon and owner of the New Jersey Nets basketball team, announced his long-simmering plans to build a 22-acre "urban utopia" in central Brooklyn, featuring more than a dozen office and apartment towers rising as high as 60 stories, a 180-room hotel, and a fancy new basketball arena for Ratner's Nets to call home.

Dubbed the Atlantic Yards, this ambitious project faced several potentially ruinous obstacles. First, various private parties owned more than half of the 22-acre site, which meant time-consuming and possibly unsuccessful negotiations to acquire their land. Second, the size and scope of the project would violate numerous zoning restrictions on height, density, and use. And third, the powerful Metropolitan Transit Authority (MTA), which runs New York City's subways, buses, and commuter trains, controlled a crucial 8-acre rail yard at the center of the proposed footprint.

So Ratner did what most politically-connected elites do when they run into trouble: He turned to the government—including his old Columbia law school pal Gov. George Pataki—for a bailout. More specifically, Ratner partnered with the Empire State Development Corporation (ESDC), a controversial and embattled state agency with the power to bypass zoning laws and seize private property via eminent domain.

The result of that unholy union is Goldstein v. New York State Urban Development Corporation, which New York's Court of Appeals—the state's highest court—will hear next Wednesday in Albany. At issue is the ESDC's use of eminent domain to seize privately-owned homes and businesses on behalf of Bruce Ratner's Atlantic Yards.

It's a classic case of eminent domain abuse. Ratner isn't planning to build a bridge or a road or any other legitimate public project that might permit the forceful taking of private property. He wants to build a basketball arena, sell tickets to the games (not to mention sell broadcast rights, advertising space, concessions, and merchandise), and make a big fat profit. That's not public use, it's private gain.

Furthermore, state officials have gone out of their way to put those profits in Ratner's hands. Consider that when the project was officially announced in 2003 there was no mention of blight, which is the state of extreme disrepair frequently cited by the ESDC to trigger an eminent domain taking under state law. Two years later, however, Ratner and the ESDC started claiming that the neighborhood was "blighted." Yet by that point Ratner had already acquired many of the properties he wanted (thanks to eminent domain) and left them empty, thus creating much of the unsightly neglect he now cites in support of his project.

Moreover, the ESDC report counted minor things like "weeds," "graffiti," and "underutilization" as evidence of blight in the various holdout properties. Yet as the Institute for Justice argues in an excellent friend of the court brief it submitted, "A finding of blight premised on underutilization or the presence of weeds in a yard is not a finding of blight—that is, not a finding that property is causing harm to surrounding properties—it is simply a finding that the government does not like what a property owner is doing with a particular piece of property." If this "finding" is allowed to stand, few homes or businesses in New York would be safe from condemnation.

As for that 8-acre rail yard at the center of the proposed Atlantic Yards footprint, the MTA quietly struck a deal with Ratner as early as February 2005 without first opening the property up for competitive bidding. After a public outcry over this blatant act of favoritism, the MTA gave prospective developers a mere 42 days to submit their own "competitive" bids—another transparent attempt to privilege Ratner, whose plans had been in the works for years, over his competitors, who had to scramble to put something together.

Still, the real estate firm Extell submitted an attractive $150 million bid for the rail yard, a property which has been appraised at over $200 million. In response, Ratner bid just $50 million and won, with that figure later negotiated to a lump-sum payment of $100 million. This past June, the MTA decided to pour a little more sugar on the deal, allowing Ratner to pay a mere $20 million up front, with the remaining $80 million due over the next 22 years. Keep in mind that the allegedly cash-strapped MTA recently raised subway and bus fares and received a $2.3 billion bailout from the state.

So what should New York's highest court do about this corporate welfare boondoggle? Remember that New York is one of just seven states that has yet to pass any laws protecting property rights in the wake of the Supreme Court's notorious 2005 decision in Kelo v. City of New London, which allowed that municipality to seize private property on behalf of the Pfizer Corporation. As Robert McNamara, a staff attorney at the Institute for Justice, told me, "New York is one of the most egregious abusers of eminent domain in the country. With no meaningful change coming from the legislature, New Yorkers need the courts to start reining in these abuses. This case is a perfect place to start."

Damon W. Root is an associate editor at Reason magazine. This column first appeared at Reason.com.

Policymakers Turn to Privatization Amid Prolonged Government Fiscal Crises

leonard.gilroy@reason.org (Leonard Gilroy) — Thu, 06 Aug 2009 00:00:00 EDT

Governments at all levels are facing severe budget deficits and prolonged fiscal crises amid the national economic recession. With the federal government facing a record $1 trillion deficit and at least 44 states facing a cumulative $281 billion in budget deficits through 2011, privatization and public-private partnerships have become increasingly prominent in fiscal policy debates and will remain so over the coming year as policymakers attempt to reduce the price of government in response to ongoing budget woes.

Now in its 23rd year of publication, Reason Foundation's Annual Privatization Report is the world's longest-running and most comprehensive examination of privatization news, developments and trends. The 2009 report finds politicians looking for solutions to growing deficits. Even seemingly privatization-resistant states like California, New York, Massachusetts and New Jersey are now turning to the private sector to help solve major fiscal and capital investment challenges.

The report's federal government section forecasts a bleak outlook for privatization and competitive sourcing under the Obama administration because the current Congress, controlled by Democrats, has been openly hostile to many competition-based initiatives. There are some highlights at the federal level, such as NASA's planned partial privatization of the manned space program, which will use private companies to design, build, and launch manned spacecraft while NASA finishes its own fleet to replace the Space Shuttle. Also, the highly successful military housing privatization initiative—which is modernizing and improving the quality of hundreds of thousands of military housing units nationwide—has spawned a new initiative to privatize on-post lodging for soldiers at Army installations.

In the state government section of the Annual Privatization Report, we profile the increasingly dire fiscal conditions in the states and offer a comprehensive review of the latest state privatization action. Due to deficits and falling tax revenues, policymakers’ interest in state privatization and government efficiency boards is demonstrably on the rise, and advisory commissions on privately-financed infrastructure have been established in California and other states. In Louisiana, the new Commission on Streamlining Government (CSG) is exploring ways to reduce the cost of state government through downsizing, streamlining and privatization to address a looming budget crisis. In other highlights, New Jersey enacted a law with overwhelming bipartisan support that privatizes the cleanup of nearly 20,000 contaminated properties in the state, while Illinois policymakers passed a partial privatization of the Illinois Lottery to help fund a massive public works bill.

At the local level, we profile Chicago's groundbreaking—but controversial—$1.15 billion parking meter system lease. Los Angeles, Pittsburgh and other cities are closely monitoring Chicago's situation as they contemplate similar parking meter initiatives to generate municipal revenues in the economic downturn. We also review Georgia's fifth new contract city, Dunwoody, which followed the lead of neighboring Sandy Springs by incorporating under a privatized city government model in which contractors provide nearly all non-safety-related services. There are also a number of privatization initiatives proposed or announced in Los Angeles, Indianapolis and numerous other cities.

The Annual Privatization Report also provides a comprehensive overview of domestic and international developments in air and surface transportation, including a wide-ranging overview of the current state of the infrastructure finance market, a review of the latest in highway and airport privatization, and a review of the latest in air traffic control reform and aviation security.

The report also examines four emerging issues attracting significant attention in policy circles. First, we offer a summary of the federal bailouts and stimulus spending to date, which currently totals a staggering $12.9 trillion spent since early 2008. We also review efforts that expand and modernize port infrastructure through public-private partnerships.

The report also reviews the latest developments in the fields of private corrections and mental health services. We review Arizona's groundbreaking prison lease proposals, a new Vanderbilt University study finding private prisons reduce state corrections costs, the looming battle to protect private prison operators' proprietary rights, and numerous other privatization developments in domestic and international corrections.

This week, the Associated Press reported: "Tax receipts are on pace to drop 18 percent this year, the biggest single-year decline since the Great Depression, while the federal deficit balloons to a record $1.8 trillion."

The federal deficit is astronomical. But states are also swimming in red ink and local governments are out of cash. Taxpayers have been hit hard by the recession and cannot be expected to bail out big spending politicians. To deal with today's economic realities, political leaders need to seek out innovative public-private partnerships and tap the efficiencies in the private sector. The Annual Privatization Report details hundreds of ways to move towards better, cheaper government.

» Reason Foundation's Annual Privatization Report 2009
» Reason Foundation's Privatization Research and Commentary

Annual Privatization Report 2009

leonard.gilroy@reason.org (Leonard Gilroy) — Thu, 06 Aug 2009 00:00:00 EDT

With governments at all levels facing severe budget deficits and prolonged fiscal crises amid the national economic recession, privatization and public-private partnerships have become increasingly prominent in fiscal policy debates, according to Reason Foundation's Annual Privatization Report 2009.

"Governments are swimming in red ink and realizing the effects of the recession will be felt long after the economy recovers," said Leonard Gilroy, editor of the report and director of government reform at Reason Foundation. "Interest in privatization is sky-high and rightly so. Now more than ever, policymakers need to study their priorities, re-examine what are really core government functions, and then tap the private sector's expertise in all of the areas where they can save taxpayer money and improve the delivery of services."

The Annual Privatization Report details the latest trends and examples of how public officials at the federal, state and local level are reducing costs and improving service delivery through public-private partnerships, outsourcing and performance-based government. It also examines privatization's progress in transportation, education, corrections, water and wastewater services and telecommunications.

"As Naked an Abuse of Government Power as Could be Imagined"

info@reason.org (Damon W. Root) — Thu, 25 Jun 2009 12:18:00 EDT

Property rights were probably the last thing on President Barack Obama's mind when he selected Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter. But that hasn't stopped Sotomayor's nomination from reigniting the long-simmering national debate over the use and abuse of eminent domain.

The controversy centers on Sotomayor's vote in a 2006 eminent domain case, Didden v. Village of Port Chester. New York entrepreneur Bart Didden says Port Chester condemned his land after he refused to pay $800,000 (or grant a 50 percent stake in his business) to a developer hired by the village. One day after Didden refused to pay those bribes, Port Chester began eminent domain proceedings against him.

As University of Chicago law professor Richard Epstein put it, "The case involved about as naked an abuse of government power as could be imagined." But that didn't stop Judge Sotomayor and two of her colleagues on the 2nd Circuit Court of Appeals from upholding the district court decision that ruled in favor of the village.

Still, this ugly decision wasn't entirely without precedent. Didden came on the heels of the Supreme Court's notorious 2005 decision in Kelo v. City of New London, which endorsed the government's power to seize property from one private party and hand it over to another so long as the taking was part of a "comprehensive" redevelopment scheme. That decision sparked nationwide outrage on both sides of the political aisle, including the passage of laws protecting property rights from Kelo-style abuse in 43 states. (The Supreme Court declined to hear Didden's appeal.)

None of that is likely to derail Sotomayor's nomination, however, which the Senate is fully expected to approve next month. But this renewed national focus on eminent domain abuse might still benefit a group of long-suffering property owners in Brooklyn, New York, who have been waging a five-year battle against the combined forces of Mayor Michael Bloomberg, the Metropolitan Transit Authority (MTA), real estate developer Bruce Ratner, and the Empire State Development Corporation (ESDC), a controversial quasi-public entity empowered by the state to seize private property via eminent domain.

At issue is the so-called Atlantic Yards project, a 22-acre redevelopment boondoggle centered on a new sports arena for the New Jersey Nets, a professional basketball team that just happens to be owned by Atlantic Yards developer Bruce Ratner. Property owner Daniel Goldstein and others brought suit, claiming the ESDC's use of eminent domain violates their property rights and oversteps even Kelo's generous interpretation of the Constitution's Public Use Clause. In particular, the plaintiffs argue that the alleged "civic benefits" of the project—including a fancy arena designed by celebrity architect Frank Gehry—were just pretexts used to justify handing both private and public land over to a politically-connected developer without considering any competing proposals. Last year the Supreme Court declined to hear arguments in their case, Goldstein v. Pataki, which is now working its way through state court.

This week the saga went from bad to worse, as the MTA, which controls the central portion of the land needed for the project, released a disastrous new plan. Consider this: In 2006 the MTA agreed to sell Ratner its 8-acre Vanderbilt rail yard—which had been appraised at over $200 million—for a lump-sum payment of just $100 million. Now the MTA says Ratner can pay just $20 million upfront, with the rest due over the next 22 years.

As the New York Post (which supports the Atlantic Yards project) declared in an editorial attacking the new deal, "After pleading poverty, jacking up [subway] fares and squeezing $2 billion from Albany, the MTA is now flush with cash. Or so one might think—if the agency OKs a plan to let a developer pay for air rights over the Atlantic Avenue rail yard on a 22-year layaway plan."

It's also worth noting that Ratner recently fired Frank Gehry, whose status as a global architectural celebrity had been one of the major "civic benefit" talking points in favor of the redevelopment. This prompted New York Times architectural critic Nicolai Ouroussoff to denounce Ratner's actions as "a shameful betrayal of the public trust, one that should enrage all those who care about this city." (The New York Times, by the way, currently operates out of a Times Square skyscraper built in partnership with Bruce Ratner that sits atop land seized via eminent domain.)

So what happens next? The state will no doubt approve this sweetheart deal just as it approved the previous one. But Ratner still needs to sell more than $500 million in arena bonds and break ground before year's end in order to qualify for tax-exempt status. Here's hoping Goldstein's lawsuit, a lousy economy, and renewed public outrage over eminent domain abuse make the Atlantic Yards the perfect size to fail.

Damon W. Root is a Reason associate editor. This column first appeared at Reason.com.

Sold Down the River

info@reason.org (Damon W. Root) — Mon, 11 May 2009 12:12:00 EDT

Since the Supreme Court's notorious 2005 decision in Kelo v. City of New London, which allowed that municipality to seize private property on behalf of the Pfizer Corporation, 43 states have passed laws protecting property rights against Kelo-style eminent domain abuse. Mississippi is not one of those states.

But that nearly changed in March 2009 when the Mississippi legislature voted overwhelmingly in support of a proposed law which would have guaranteed that "the right of eminent domain shall not be exercised for the purpose of taking or damaging privately owned real property for private development or for a private purpose; or for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity."

In addition to enjoying strong bipartisan support in the statehouse, this piece of long-overdue reform was backed by groups as politically diverse as Americans for Tax Reform, the Southern Christian Leadership Council, and the Mississippi Forestry Association.

But none of that mattered to Republican Gov. Haley Barbour, who promptly vetoed the bill, claiming it would cripple his ability to lure large corporations into the state. As Barbour, a former chairman of the Republican National Committee, admitted in his veto statement, had he not promised Toyota that he would use eminent domain to secure a piece of contested land for its Blue Springs facility, "Toyota would have broken off negotiations with us and chosen one of the other states competing with us for the project."

That sob story may be true, but it still does nothing to justify the state's forcible seizure of private property for the benefit a rich and powerful corporation. Toyota won't be building bridges or roads or waterways or any other legitimate public project that might permit the use (or threat) of eminent domain. It wants to build a plant to manufacture cars and then sell them for a profit. That's not a legitimate public use. If Toyota—or any other corporation—wants a particular piece of land, it should either pony up the market price or find somewhere else to settle. By the same token, if Barbour wants to attract business to his state, he might try pushing for lower corporate taxes or for any number of other pro-business enticements that don't involve stripping citizens of their fundamental rights.

Last Thursday, the situation went from bad to worse, as Barbour introduced an eminent domain bill of his own during a special legislative session. It's a tricky piece of work, one designed to appease lawmakers and voters by borrowing some of the best language from the vetoed bill, yet with certain disastrous additions to the text. Here's how Barbour's eminent domain "reform" bill reads (emphasis added):

The right of eminent domain shall not be exercised for the purpose of taking or damaging privately owned real property for private development, for a private purpose, for enhancement of tax revenue, or for transfer to a person, nongovernmental entity, public-private partnership or other business entity, unless the taking of private property is authorized for a project under the Mississippi Major Economic Impact Act.

The Mississippi Major Economic Impact Act, of course, is one of the biggest reasons why the state needs eminent domain reform. Indeed, that act facilitates the very sort of sweetheart deals between politicians, developers, corporations, and the Mississippi Development Authority that H.B. 803 was specifically designed to prevent. So in the alleged name of protecting property rights, Barbour champions legislation that would undermine those rights even further.

What happens next? Christina Walsh, the director of activism and coalitions at the Institute for Justice, the libertarian legal firm that represented Susette Kelo before the Supreme Court and has since spearheaded many state-level eminent domain reforms (including this one), urges Mississippi lawmakers to reject Barbour's bill and "to stand behind the constitutional principles they voted for earlier this year and behind the constituents that voted them into office."

In March 1792, James Madison took to the pages of the National Gazette to explain why property rights were essential to the preservation of a free society. "Where an excess of power prevails," Madison observed, "property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." Here's hoping those lawmakers do the right thing and stand up one more time for Mississippi's victimized property owners.

Damon W. Root is an associate editor at Reason magazine. This column first appeared at Reason.com.

In Oregon, Posthumous Court Victory for Measure 37 "Poster Child"

leonard.gilroy@reason.org (Leonard Gilroy) — Thu, 30 Apr 2009 08:06:00 EDT

Dorothy English, the late Oregon widow whose fight against regulatory overreach helped prompt a statewide policy shift on private property rights, has finally been made whole in the courts. Per The Oregonian:

Property rights advocates called it a bittersweet win. The Oregon Court of Appeals ordered Multnomah County to pay a $1.15 million judgment to the estate of Dorothy English, but the "poster girl" of the state's land-use argument isn't around to enjoy it.

English, who died in 2008 at age 95, fought the county in court for four years in an attempt to develop her property off Northwest Skyline Boulevard outside of Portland. She ultimately won a judgment for compensation, but the county maintained it had discretion whether to pay or not. A Circuit Court judge sided with the county, but the appeals court emphatically reversed that decision and ordered the county to pay. [...]

"It's a great ruling," said Dave Hunnicutt, president of the property rights group Oregonians in Action. "The Court of Appeals was very clear. Final means final, is what they were saying."

Oregonians in Action sponsored Measure 37 in 2004 and portrayed English as a victim of unfair land-use rules: an elderly widow and longtime property owner not allowed to develop her land. Voters approved the measure, which gave property owners the right to develop their land in a way that was permitted when they bought it. English, alternately wry and profane, endorsed Measure 37 in campaign ads.

About 6,500 property owners filed development claims after Measure 37 passed, many with the stated intent to build large rural subdivisions. The prospect of such development was a major factor in voters passing Measure 49 in 2007. It rolled back development rights, and most of the claimants settled for a process that will allow them to build one to three homes.

But English was not among them. She wanted to split her 20 acres into eight homesites for her family. But that wasn't permitted because the county had rezoned the property after English and her late husband bought it in 1953. English filed a Measure 37 claim, and the county agreed to let her develop eight lots in lieu of paying compensation. But the county loaded its approval with conditions. English's attorney responded that such standards and procedural rules didn't exist when English bought the property.

For more of the backstory on Measure 37 and Ms. English's role in it, see my 2005 study here. Measure 37 was subsequently watered down, as discussed in the "Land Use and Environment" section of Reason's Annual Privatization Report 2008.

Still, Oregon landowners owe a great deal to Ms. English, as their property rights are more secure today than they were a decade ago (though there's still a long way to go). And she helped raise public awareness of the importance of protecting private property rights and the myriad of ways in which they are threatened under Oregon's top-down, state-driven land use regulatory system. While eminent domain reform is certainly important and worthy of attention, we should never forget that regulatory takings are no less of a threat to private property rights.

» Reason's Eminent Domain & Regulatory Takings Research and Commentary

"Eminent Domain Through the Back Door"

info@reason.org (David Beito) — Tue, 28 Apr 2009 12:05:00 EDT

What is happening in the cradle of the modern civil rights movement? Jimmy McCall would like to know. "It was more my dream house," he laments, "and the city tore it down... It reminds me of how they used to mistreat black people in the Old South." In 1955, Rosa Parks took on the whole system of Jim Crow by refusing to give up her seat on a segregated Montgomery bus. Today, McCall is waging a lonely battle against the same city government for another civil right: the freedom to build a home on his own land.

Though McCall's ambitions are modest, he is exceptionally determined. For years, he has scraped together a living by salvaging rare materials from historic homes and then selling them to private builders. Sometimes months went by before he had a client. Finally, he had put aside enough to purchase two acres in Montgomery and started to build. He did the work himself using materials accumulated in his business including a supply of sturdy and extremely rare longleaf pine.

McCall only earns enough money to build in incremental stages, but eventually his dream home took shape. According to a news story by Benjamin Solomon, the structure had "the high slanted ceilings, the exposed beams of dark, antique wood. It looks like a charming, spacious home in the making."

But from the outset, the city showed unremitting hostility. He has almost lost count of the roadblocks it threw up including a citation for keeping the necessary building materials on his own land during the construction process.

More seriously, he was charged under the state blight law, which allows a municipality to designate a building as a "public nuisance" and then demolish it. Critics have accurately called this "eminent domain through the back door" and warn that opportunities for abuse are almost limitless. In contrast to the standard eminent domain process, for example, property owners do not have any right to compensation, even in theory.

The reaction of Montgomery's city fathers seemed strange to McCall. Wasn't he trying to fight blight by building a new home?

McCall suspects that wealthy developers were trying to get their hands on the property: a rare two-acre parcel on a major thoroughfare. Unlike countless others in similar straits, McCall fought back and hired an experienced local lawyer. In the middle of last year, he negotiated a court-enforced agreement, which gave him 18 months to complete the home. Only a month after the agreement took effect, the city demolished the structure. Local bureaucrats, obviously in a hurry to tear it down, did not even give him notice. The bulldozers came in the same day as the court order that authorized them.

McCall appealed to the same judge who had allowed the demolition. Saying that she had been misled, the judge ordered the city to pay compensation. Montgomery has appealed and at this writing McCall has not received a cent. McCall thinks that the city intends to drag it out until his money runs out. "I've got a lot of fight left in me, and all I want is justice," he states.

McCall's story of eminent domain through the back door is depressingly familiar to Jim Peera's story. For almost five years, he has fought a pitched battle with City Hall over his plan to renovate a strategic parcel of 121 apartments in the heart of the Rosa Parks Community and rent them to low-income senior citizens. Montgomery has a multimillion dollar development plan for his 8-acre site and is using "blight" to condemn and demolish it.

Peera has withstood multiple setbacks on his investment, including unfounded criminal charges by the city and mysterious fires on his solid block structures. He has repeatedly tried to sell to or partner with the city for a much needed affordable housing development, but it has rebuffed him.

"They're used to forcing black folks to give their properties up via imposing hefty demolition liens, as opposed to buying land at fair market value," he said.

Most recently, the city tried to further devalue Peera's property by reducing the density from "multifamily" to single family, thus making it impossible to provide affordable low-income housing. Though Peera won in two courts, local bureaucrats, much like they are doing with McCall, meet his legal victories with appeals and other delays.

Peera, who had to flee from his native East Africa after Idi Amin expelled its Asian population, does not easily intimidate and is extremely determined to fight property abuse in Alabama. He is trying to mobilize other Montgomery property owners who face the same plight. Through the state's freedom of information act, he has obtained the names of over several hundred individuals, mostly from minority neighborhoods, who have had their homes summarily demolished under the blight law.

The former owners have related to him a litany of arbitrary mistreatment, but most were too poor or lacked the necessary information to fight back against the city. "What this City Hall is doing is criminal towards blacks and property owners, and it must be stopped," Peera said.

Peera has appealed to the State Advisory Committee of the U.S. Commission of Civil Rights and hopes that others will join him. On Wednesday, Alabamians who believe that their property rights have been violated under eminent domain, either through the back door or the front door, can tell their stories to the Committee at a public forum from 9 a.m. to 5 p.m. at Whitely Conference Hall on the Montgomery campus of Troy University.

David T. Beito is chair of the Alabama State Advisory Committee of the U.S. Commission on Civil Rights and professor of history at the University of Alabama. This article originally appeared in the The Tuscaloosa News. This column first appeared at Reason.com.

SLAPP Silly

jsullum@reason.com (Jacob Sullum) — Fri, 20 Mar 2009 12:01:00 EDT

reason was going to run an article about touchy developers who sue people for criticizing their abuse of eminent domain. One of those developers is H. Walker Royall of Dallas, who sued Wright Gore III over a website that detailed the city of Freeport’s attempt to condemn land occupied by the Western Seafood Company, a business owned by Gore’s family, so Royall could use it for a luxury marina project.

Royall also sued Carla Main, a journalist whose 2007 book Bulldozed chronicles the legal struggle over the Gores’ land. He sued Main’s publisher, Encounter Books. He sued University of Chicago law professor Richard Epstein, one of the country’s leading authorities on eminent domain, for writing a blurb that appeared on the cover of Main’s book. He even sued two newspapers that published reviews of it.

reason also was planning to mention Richard Swift, a city councilman in Clarksville, Tennessee, and Wayne Wilkinson, a member of the city’s Downtown District Partnership. Swift and Wilkinson sued the Clarksville Property Rights Coalition over a May 2008 newspaper ad that condemned a redevelopment project involving eminent domain. The ad noted that Swift, Wilkinson, and Clarksville Mayor Johnny Piper “are all developers,” adding, “This redevelopment plan is of the developers, by the developers, and for the developers.” The city council approved the plan anyway, and now Swift and Wilkinson are demanding $500,000 for the damage the ad did to their reputations.

reason was going to discuss how these developers’ abuse of defamation lawsuits threatens freedom of speech in the same way that their abuse of eminent domain threatens property rights. But the Institute for Justice, which represents Main, Epstein, and Encounter Books in the case brought by Royall and the Clarksville property rights activists in the case brought by Swift and Wilkinson, had some words of warning. Even if defamation lawsuits against critics of eminent domain abuse fail in court, I.J. notes, “the large expenditure of time and money associated with defending them all too often accomplishes the goal of silencing those who stand up for their rights.”

So reason decided not to run an article about these cases after all.

Not One More Acre!

info@reason.org (Trey Garrison) — Tue, 17 Feb 2009 11:43:00 EST

Mack Louden spits Copenhagen juice on the floor of the empty storage bay of his shuttered feed store in Trinidad, a small town in southeastern Colorado an hour’s drive from Louden’s ranch. He rests his hand on a leather cell phone holster like a gunslinger might. Then he grins. Or maybe it’s just that he doesn’t frown. He is letting something happen that’s pretty alien to his nature: There’s a photographer with a lens about two inches from the nose on Louden’s life-creased, weather-worn face, crowding his personal space. Under any other circumstances, someone this far inside his personal space would get some serious pushback.

But Louden, an activist for the group Not 1 More Acre!, puts up with the inconvenience. What the cause asks for, ranchers like Louden give. The alternative is the end of life as they know it. Publicity is a powerful if uncomfortable weapon for people accustomed to their privacy, for whom property lines and personal space are more important than mere law. In the asymmetrical war these ranchers are fighting, they use any weapon they can, because theirs is an opponent that tends to win: the U.S. Army.

The Army already occupies 245,000 acres of Colorado’s desolate Piñon Canyon, which it uses for large-scale, force-on-force mechanized brigade combat exercises involving tanks and armored units. But since 2006 Uncle Sam has had his eye on at least 418,000 acres more, to handle increased demand for maneuvers and the expansion of Fort Carson.

Most of that land is private property in the Comanche National Grasslands lying between the rustic ranching towns of La Junta, Trinidad, and Walsenburg. The proposed annexation, which would create a contiguous Army-owned area 85 percent the size of Rhode Island, has attracted loud opposition from local landowners, environmentalists, scientists, and politicians. Their combined efforts were enough to gain a congressionally ordered reprieve in 2007, but the Army appears determined to wear them down. In fact, the training ground expansion may be just the first phase of an enormous land grab potentially involving millions of acres.

The Army’s land envy is why Louden, the 58-year-old son and grandson of Colorado ranchers, closed Marty Feeds, a Trinidad landmark for almost a century, in the summer of 2008. He could run a ranch, run a business, or fight the land grab, but not all three at once. “When it comes down to it, this is what’s important,” Louden says, sitting upstairs in the nearly vacant building after the photo shoot, spitting into a paper cup to underline his point. “It’s driving my wife crazy how much of my time this has taken, but no matter what it costs me I’d fight it again if I had the chance.”

‘This land is not for sale at any price.’

Piñon Canyon is a barren but ranchable landscape on the east side of the Continental Divide that resembles the kind of high desert environment found in much of Iraq, which is one reason the military uses it for training. The Army says it needs to expand the existing Piñon Canyon Maneuver Site (PCMS), where armored and mechanized units out of nearby Fort Carson conduct live-fire training exercises twice a year. The additional space is needed, the argument goes, to enable Fort Carson’s growth and to allow units larger than a battalion to conduct exercises on a wider variety of terrain.

Opponents say such a seizure would devastate local economies, affecting as many as 50,000 people who live in the towns surrounding the PCMS, plus 567 ranches, and more than $20 million a year in agricultural production, mostly in the form of cattle.

Lon Robertson, a neighbor of Louden’s (meaning his property is within 20 miles) and the head of the Piñon Canyon Expansion Opposition Coalition, emphasizes that it’s not just about the land. “The impact on this whole region will be monumental,” Robertson says. “It will be devastating.” Aside from the estimated $20 million in ranching business directly affected, neighboring ranches will feel the impact of nearby maneuvers—live-fire tank battles will disturb both rancher and ranched—and the closing of certain access roads in the area. Louden’s one-hour drive from his ranch to Trinidad, for example, would turn into a two-hour detour around the new maneuver site. Most of the towns depend on ranching and agricultural commerce. An expansion could mean their end, unless the ghost towns are turned into urban warfare training sites.

Some of the ranch deeds in these parts go back to the Homestead Act of 1862, which gave 160 acres of unoccupied land to anyone moving west in exchange for a small fee and five years’ residence. Folks here refer to each other’s land as “country,” as in, “That’s Kenny’s country over there.” Louden’s family traces its local roots to 1902, when his grandfather rode on horseback from Indiana down the Santa Fe Trail and settled about 60 miles east of Trinidad. “This land is not for sale at any price,” Louden says, repeating a phrase you can find on bumper stickers and yard signs throughout the area.

The Department of Defense already owns about 25 million acres in the United States, of which the Army’s share is 15 million. The military says that’s not enough, because to train the right way, it needs a certain kind of terrain, within a certain proximity to existing bases, and it needs lots of it. Local ranchers have an answer to that: Not one more acre. The battle cry is the name of their nonprofit action group.

The current Piñon Canyon Maneuver Site is 245,000 acres along and around the Purgatoire River. It was taken, or purchased after eminent domain proceedings, in September 1983 at a cost of about $26 million ($53.5 million in current dollars) plus $2 million ($4.1 million today) for relocating dozens of ranchers and their families. Southeast Coloradans were promised two things in 1983: There would be no further expansion, and the PCMS would not be used for live-fire exercises. “I reiterate there will be no live firing at [PCMS],” a major general at Fort Carson wrote to a participant at one of the preliminary public hearings on the initial Piñon Canyon seizures, in a letter dated July 30, 1980.

But neither promise has been kept. And some of the same people in the Army’s sights now had their ranch land taken a quarter-century ago.

These people are not your typical anti-military types. They’re dyed-in-the-wool Red Staters, many of them service veterans. They just don’t see why the Army needs their land, given all it already has. “If they needed it for legitimate defense of our country, I think every last one of us would give them our land,” Louden says. “But they don’t need this land. They just want it. They already own 25 million acres. Why do they need this land here?”

Army spokesman Dave Foster says the area is needed to expand the PCMS partly because the number of soldiers stationed at Fort Carson, the base for the units that use the training ground, will grow from 16,000 to 25,000 during the next two years. “Changes to unit organization in the past year, upgrades to technology, and a decision to add a fifth [brigade combat team] have all pushed the doctrinal training land requirements up, not down, at Fort Carson,” Foster says. As for why the Army doesn’t use some of the copious land it already has, Foster says in many cases the terrain isn’t right or the land is subject to federal restrictions preventing it from being used for training. What it really boils down to, he admits, is convenience.

“In order to support Fort Carson–based soldiers, other federal lands must not only be suitable and available, they must also be within 200 miles of Fort Carson/PCMS,” Foster says. “If the federal lands are further away than 200 miles, the burden on soldiers and families to use the land regularly for home-station readiness training purposes becomes so great that the Army would be forced to consider re-aligning units away from Fort Carson and to other installations with closer facilities.” He adds, “There are a handful of federal landholdings…that the Army is investigating further, [but] none of these are assured or problem-free. Securing permission from other federal agencies to train on these lands is a lengthy and difficult process.” In other words, it’s easier to take property from private owners than it is to use land held by other branches of the government.

Louden’s response: “Yeah, it’s convenient for them. The generals can fly down, observe training and maneuvers, and fly back to Colorado Springs in time to play golf in the afternoon.” Spit.

‘The bureaucracy has a power all its own.’

The insurgency against the expansion sprang up almost immediately after word of the plan became public in 2006. Piñon Canyon also includes portions of the historic Santa Fe Trail, and a number of dinosaur fossils and footprints have been found in the area. So the opposition has grown into a broad coalition of ranchers, archaeologists, paleontologists, tribal leaders, and business owners. The landscape here is at once rugged and fragile, supporting only plants with shallow root systems. These patchy, protein-rich short grasses keep herds fed in the winter, and they’re interspersed with rugged scrub and easily damaged rocky flatland given to dust storms. Even today, the ruts made by wagons traveling the Santa Fe Trail more than a century ago are plainly visible in the flats. Imagine what a 67-ton Abrams tank or an 18-ton Stryker combat vehicle on maneuvers can do, not to mention the impact of live-fire exercises in a place where lightning sparks grassfires that burn hundreds of acres at a go.

The Army initially planned to seize the extra land through eminent domain, according to Army study documents, as it did back in the 1980s. It would be on firm legal ground, since national defense is a clear “public use,” as required by the Fifth Amendment. But since many Colorado ranchers had been down this road before, they mobilized immediately. Among other tactics, they have used demands for studies of the project’s environmental and historical impact to hold it up both in the Army’s own processes and through the courts.

Steve Wooten has a ranch a quarter mile away from land the Army wants. In 2007 he started coordinating an effort to make an ecological, biological, and historical assessment of properties that have mostly been off-limits to surveyors. “Nothing of this extent has ever been done because no one ever had access to these lands but their owners,” Wooten says. “We’re getting teams of experts in here to conduct these surveys and submit them as evidence of the impact the PCMS expansion would have.” Meanwhile, Not 1 More Acre! halted the construction of a 16-barrack military base on the western edge of the existing training site with an April 2008 lawsuit charging that the Army was violating the National Environmental Policy Act of 1969 by failing to make the required environmental, cultural, and economic impact statements. The Army is appealing a federal judge’s ruling in the group’s favor.

Anti-expansion activists also have lobbied their local, state, and federal representatives. Municipal and county governments throughout the area, with the exception of Trinidad itself, have passed resolutions against the expansion, and so has the state legislature. In 2007 opponents won their biggest victory so far: Reps. Marilyn Musgrave (R-Colo.) and John Salazar (D-Colo.) pushed through a one-year congressional ban on funding for eminent domain acquisitions or expansion activities in Piñon Canyon. Last year Congress extended the ban through the end of fiscal 2009.

But Rep. Doug Lamborn (R-Colo.), whose district includes Colorado Springs, supports the expansion. Lamborn led an effort to let the Army circumvent the spending ban by attaching language to the 2009 Defense Authorization Act that allowed the solicitation of “willing sellers.” Although the amendment was not successful, the Army says it still reserves the right to solicit sales.

Keith Eastin, assistant secretary of the Army for installations and environment, has said the Army is speaking to some potential sellers. But despite repeated inquiries from members of Congress, the buyer hasn’t revealed who these landowners are. “The Army believes it can buy the land it needs from willing sellers,” Foster, the Army spokesman, says. “The Army has no desire to assert its condemnation authority, does not feel such authority is needed in this case, and seeks only the ability to buy on the open real estate market like any other organization.”

Opponents say that’s an end run around the funding ban’s intent. They say the Army’s aim is a checkerboard land grab that would make acquisition of other desired parcels inevitable by devaluing them. Live-fire war games among armored units and demands for access easements tend to drive down land values, not to mention spook cattle. Army land purchases also could intimidate holdouts, who will worry that they won’t get as much in compensation should eminent domain come later.

Many smaller ranchers also worry that there would be less political opposition to eminent domain proceedings against the remaining holdouts if the Army got halfway to its goal by soliciting or strong-arming other owners.

“For the past two years I’ve worked on preventing the Army from spending any money on the expansion,” Rep. Musgrave says. “But they are very tenacious. They have time and all the things government has on their side.” What about soliciting willing sellers? “I’m so tired of anyone saying if you have a willing seller it shouldn’t be a problem,” Musgrave says. “First, they have not found one. Second, everyone else’s property rights are at risk from eminent domain once the Army starts getting a parcel here or there. They just never stop. The bureaucracy has a power all its own.”

‘There’s no compromise that can be made.’

A new twist came in September 2008, when the Army backtracked and said it only needed 100,000 acres of the 418,000 it initially sought and formally announced. For now. The reasons cited were vague. “Land acquisition resources are not unlimited; the Army has other land acquisition efforts it needs and wants to pursue at other locations,” Foster says, carefully sidestepping the question of whether the Army is moving toward its goal one phase at a time.

Yet even the full 418,000 acres might not be the end of the story. According to a 2004 policy document prepared by Fort Carson entitled “Analysis of Alternatives Study: Piñon Canyon Maneuver Site, Colorado,” the Pentagon has been seeking since at least 2004 to acquire 7 million total acres in southeastern Colorado, stretching all the way down to New Mexico. Such an acquisition would displace 17,000 residents and create a military reservation larger than Massachusetts.

The study lays out the need to take over some 6 million acres of private land and 1 million acres of U.S. Forest Service land to form an installation for training all four services as well as foreign allied forces. This land grab would happen in phases, the first of which being the Army’s acquisition of the 100,000 acres it is now seeking in Piñon Canyon, a transfer that would displace about 220 residents.

Opponents characterize the Fort Carson report as a smoking gun. “Far from compromising its plans, the Army is actually sticking almost exactly to the phased acquisition laid out in this document,” Louden said in a written statement about the documents in September. “Army assistant secretary Keith Eastin has stated publicly that the Pentagon will be back for more land in the future.”

“First 400,000 acres, then 100,000—they just want to wear everyone down,” Rep. Musgrave says. “It’s all part of one colossal land grab in Colorado.” She has little doubt the Army’s long-term goal is to acquire the full 7 million acres. “And it’s always hanging over everyone,” she says. “You can bet if there is [a permanent solution], we will find it. But bureaucracy has all the time in the world. They can be very patient and come back when this crowd gets worn down. I support the military with all my heart, but they’re not right here. Fool me once, shame on you. Fool me twice, shame on me.”

Jim Herrell, a co-plaintiff in the lawsuit against the Army brought by Not 1 More Acre!, echoes Musgrave’s distrust. “The Army got its foot in the door in the 1980s with promises that they’d never be back and there would be no live fire,” he says. “Those promises are broken. Every level of democracy has voiced its opposition to the expansion of the size and boundaries at Piñon Canyon clearly and repeatedly, yet the Pentagon and its contractors refuse to heed the will of the people.”

Sen. Ken Salazar (D-Colo.), Rep. Salazar’s brother, also seems fed up with the Army’s maneuvering. “Quite frankly, the Army needs to be a better neighbor with the land they have now,” he says. “When the Army announced its plans to expand, it created a cloud of uncertainty. The Army wasn’t able to effectively answer questions on why they needed the land, which land they wanted, how much land they thought they needed, whether they would use eminent domain, and what the impacts would be.”

What he says next sounds reassuring to an outsider, but it suggests why the opposition considers Salazar a soft ally at best. “The Army needs to answer those questions,” he says. “I have set up a process in law that requires them to do that. Until this process is complete, and the [Government Accountability Office], the public, and Congress have had a chance to review the Army’s reasoning and plans, the expansion should not move forward. I am still hopeful that there is a way to find a win-win solution.”

Kimmi Lewis, a third-generation rancher who watched the initial drama at Piñon Canyon unfold in the late 1970s and early ’80s and who saw friends lose their land, is doubtful. "There’s no compromise that can be made,” he says. “They don’t ever stop.”

‘The people are losing the government.’

Driving across miles of dirt road that run along the PCMS—cattle to the right, the Army’s “Keep Off ” signs to the left—Louden says he thinks one of the biggest obstacles he and his fellow activists face is that journalists and other opinion makers in places like Washington and New York City can’t fathom the scale of land under discussion.

“For someone who pays $1 million for a 1,000-square-foot apartment or a quarter-acre lot,” he says, “they think 100,000 acres is all the land in the world. Why not give up a little?” But in this part of the country a rancher needs up to 100 acres to support a single head of cattle, just one cow. Herds are fed grain in the warmer months and live off that protein-rich grass in the harsh winter. Louden, whose own 30,000-acre ranch supports just 300 head of Red Angus, says that when all is said and done, a rancher with an operation the size of his nets about $35,000 a year. Most ranchers or their wives work extra jobs to make ends meet and pay for health insurance.

Louden and I are driving with Kennie Gyurman, who lost his ranch to the first PCMS taking in 1983 and is still mad about it 25 years later. Gyurman is showing us some of the damage on the PCMS from the grassfires of late summer. The Army says the fires were caused by lightning, but ranchers suspect they were caused by training activities in the area. A powerful black storm is rolling in, massive in the wide-open vista made possible by the flatness of this land. The refrain about broken promises continues.

“You can’t trust a thing they tell you,” Gyurman says. “They’ll say they want one thing and take another. They’ll say they just want this much, and then they’ll take everything. We have to stop them.”

The opponents aren’t just saying no because it’s their land. Louden’s ranch isn’t actually in the Army’s sights. His position is as much philosophical as it is a matter of self-interest. “The people are losing the government,” he says. “The Pentagon is going ahead with their plans despite all the studies they’re supposed to be doing and despite what the people and their elected representatives have said they want. It affects everyone in this region, and they’re not even following their own rules.

“We are all Americans. We all support our country and our military. But the military is supposed to answer to the people, and to serve to protect our rights. What is the military defending us from if they’re the ones who take our land? I’m not a picket sign kind of guy. But fighting this? It’s the best thing I’ve ever done.”

Trey Garrison is a contributing editor at D Magazine. This column first appeared at Reason.com.

There Goes the Neighborhood

info@reason.org (Damon W. Root) — Mon, 09 Feb 2009 11:31:00 EST

For the last five years, Nick Sprayregen has battled the combined forces of Columbia University and the Empire State Development Corporation (ESDC), a quasi-public entity empowered by the state of New York to seize private property via eminent domain. The conflict centers on Columbia's desire to control the West Harlem neighborhood of Manhattanville, where four of Sprayregen's successful Tuck-It-Away storage businesses currently operate, and where the university wants free reign to build a massive new research campus.

The ESDC laid the groundwork for that free reign last July by declaring Manhattanville to be "blighted," which is the state of economic disrepair required to trigger an eminent domain seizure under state law. In December, Columbia's multi-billion dollar project got the green light. But late last month, Sprayregen launched an offensive of his own, filing a 107-page petition with the appellate division of the New York Supreme Court "to reject, annul and set aside" the ESDC's determination and finding of blight.

It's a startling document, one that provides convincing and damning evidence of widespread collusion between the ESDC and Columbia University to violate both the letter and spirit of the law, as well as to create the very conditions that ESDC officials then used to justify their intervention on Columbia's behalf. As the petition notes, "This case is about the secret collaboration between ESDC and New York City agencies in a complex plan to give that developer, an elite private university, everything it wanted, without compromise or limitation, while evading public review and accountability."

Consider the following: In 2006, the ESDC hired the planning and engineering firm Allee King Rosen & Fleming, Inc. (AKRF) to perform an "impartial" neighborhood blight study. AKRF was certainly a bold choice, given that the firm was already on Columbia's payroll and actively working on the contested Manhattanville plan. According to billing records that Sprayregen's attorney, civil libertarian Norman Siegel, turned up via the state's Freedom of Information Law, as many as six AKRF employees worked on both the blight study and the redevelopment project, which is practically the definition of a conflict of interests.

The report itself proved to be just as flawed. For starters, AKRF failed to mention that Columbia owns 76 percent of the neighborhood and was thus directly responsible for the overwhelming majority of blight that the report alleged, ranging from overflowing basement trash heaps to major roof and skylight leaks. (Columbia has been performing maintenance on several buildings it plans to preserve for their historical significance.) As numerous tenants have now reported, the university refused to perform basic and necessary repairs, which both pushed tenants out and manufactured the ugly conditions that later advanced Columbia's long-term interests. As Sprayregen wrote in an op-ed for The Wall Street Journal, "Only a few years ago, this area was undergoing a resurgence. Virtually all property was occupied, many by long-standing family operations such as my own. Now most of those businesses are gone—forced out by the university."

AKRF admitted as much in preliminary findings delivered to the ESDC, which identified "Open violations in CU Buildings" and "History of CU repairs to properties" among its "issues of concern." On top of that, AKRF relied on misleading and in some cases inappropriate evidence, including irrelevant crime statistics and building code violations that had zero relationship to actual physical conditions (such as the failure to file an annual boiler inspection).

In fact, the ESDC-Columbia redevelopment scheme fails to meet even the generous standards set by the Supreme Court's notoriously eminent domain-friendly decision in Kelo v. City of New London (2005), which permitted the transfer of property from one private party to another so long as the taking was part of a "comprehensive redevelopment plan." But as Justice Anthony Kennedy's concurring opinion in the case also made perfectly clear, "transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause." As Sprayregen's petition demonstrates, that is exactly what is happening between the ESDC and Columbia University.

Perhaps the worst part of the whole affair is that Columbia no longer even needs eminent domain to get its way. The threat alone did the trick. Beginning in roughly 2002, the university started dropping none-too-subtle hints to property holders that they hurry up and sell their land before the state condemned it. Between the 76 percent Columbia now owns and the 15 percent that New York City effectively controls (including property held by the Metropolitan Transportation Authority), the university holds sway over 91 percent of Manhattanville. Surely that's enough land to build a swanky new campus? As for Sprayregen's four holdout properties, all but one of them sits on the periphery of Columbia's proposal. To date, the university has made no offer to buy any of them.

So what happens next? As Sprayregen told me via email, "Although we are hopeful that the NY courts will stop this use of eminent domain, if need be we are more than prepared to take this case to the U.S. Supreme Court."

Damon W. Root is an associate editor at Reason magazine. This column first appeared at Reason.com.

Scottsdale Water Condemnation Proposal Leaves a Bad Taste

leonard.gilroy@reason.org (Leonard Gilroy) — Mon, 30 Jun 2008 00:00:00 EDT

Letter to the Editor, East Valley Tribun

The Tribune is spot on in its critique of the proposed City of Scottsdale takeover of Arizona American Water Company's water utility ("Our View: Don't buy water company, but keep close tabs on it," June 24th).

A takeover would be fiscally irresponsible given current budget conditions and future needs. Taxpayers would likely face exorbitant acquisition and legal costs far higher than initial projections, as seen recently with the Toll Brothers' condemnation case. Add in the potential for rising operations, maintenance, and environmental compliance costs into the future--not to mention the staggering long-term investment needed to meet the water demands of a rapidly growing population--and the folly of a takeover becomes quickly apparent.

More importantly, using the power of eminent domain to expropriate a private business with a long track record of safe and successful operations would be an egregious affront to private property rights and an idea better suited for Hugo Chavez's Venezuela than modern America.

As we saw with the overwhelming support for Prop 207 in 2006, most Arizonans understand that strong private property rights are key to freedom, progress, and a dynamic market economy. A City takeover of American Water's facility would be just as egregious as expropriating assets from APS, Qwest or any other investor-owned utility that serves its customers while being held accountable to stringent federal, state, and local regulations. Government's role is to protect private property rights whenever possible, not selectively undermine them.

Hopefully, the City Council will re-evaluate its position. As rapid growth brings increasing pressure on scarce tax dollars, we should be partnering more with private businesses to help meet our infrastructure demands, not driving them away through government bullying.

States Should Establish Ombudsmen To Protect Private Property Rights

leonard.gilroy@reason.org (Leonard Gilroy) — Thu, 17 Apr 2008 00:00:00 EDT

Inside ALEC

Private property rights have become one of the more prominent public policy concerns at the state level in recent years in the wake of the U.S. Supreme Court's 2005 Kelo vs. New London decision. Kelo gave local governments a green light to seize private homes and businesses for the sole purpose of generating higher tax revenues through redevelopment. While on the surface, this decision appeared to be a significant defeat to advocates for stronger protection of private property rights, the national Kelo backlash prompted legislation, constitutional amendments, and/or ballot measures in over 40 states to restrict the use of eminent domain to varying degrees.

Unfortunately, the Kelo variety of eminent domain abuse is just one of many different ways in which private property rights are routinely threatened by government action. Land use regulations, development restrictions, and exactions are just some of the other means through which property rights may be infringed upon. Hence, state legislators should consider complimentary, alternative approaches to safeguard the rights of private property owners. As the state of Utah has shown, the establishment of a state property rights ombudsman can be a powerful and effective means of protecting private property rights.

In Utah, the property rights ombudsman (established in Utah Code Title 13, Chapter 43) is appointed to receive and investigate complaints made by individuals against government property rights abuses and to achieve equitable settlements. Craig Call, Utah's first such ombudsman explained in a 2004 speech that, "my job […] is to help property owners understand and protect their constitutional property rights […] and avoid unconstitutional taking of private property without just compensation and then resolve property rights issues fairly in accordance with existing law and without expensive and time consuming litigation."

The ombudsman has several means available to try and resolve property rights disputes. The first and simplest is conciliation-calling local or state officials to discuss a potential dispute and trying to find an objective resolution. Next is mediation; the ombudsman can meet with the parties to assist them in evaluating relevant laws and facts to reach a consensus. The ombudsman can also provide an advisory legal opinion to resolve a dispute in accordance with prevailing law. Finally, the ombudsman has the discretion to order arbitration at the request of the property owner and require the government entity to participate.

While the combination of these approaches may not prevent a property rights dispute from ending up in litigation, it provides several alternative methods of dispute resolution that have significantly diminished the likelihood of litigation and provided better outcomes for property owners (such as more favorable financial settlements in condemnation cases).

And it is important to note that Utah's ombudsman is able to intervene in a wide variety of property rights and "takings" disputes-such as local land use issues involving exactions and regulatory takings-not just situations dealing narrowly with the use of eminent domain. In fact, some local ordinances with significant property rights implications have been modified or shelved altogether after intervention from the ombudsman's office.

The concept of a property rights ombudsman is not new to the American Legislative Exchange Council (ALEC). In fact, ALEC adopted model property rights ombudsman legislation in the mid-1990s. However, the model is not as far reaching as Utah's current legislation, and private property rights are now on the policy radar in a much more prominent way than they were just a decade ago. Prior to Kelo, average citizens underestimated the power of government to trample on property rights. Today, property owners and citizens are more aware than ever of the need to protect their property rights from the expanding reach of government.

For ALEC's legislative members, proposing the establishment of state-level ombudsmen is an idea worth revisiting. It is time to dust off ALEC's existing model and consider ways to update and modernize it, using Utah's successful implementation as guidance. As evidenced by the overwhelming bipartisan, cross-cultural support for Kelo reforms nationwide, it is clear that a majority of citizens will eagerly embrace new solutions to protect their property rights and make government more fair and accountable in the process.

Drew Carey: LA Officials Use Eminent Domain to Help Rich Get Richer

Tue, 18 Dec 2007 12:14:00 EST

Los Angeles (December 18, 2007) – "You know the great thing about America is once you own property - you own it," says Drew Carey in a new Reason.tv video examining eminent domain abuse. "You can do anything you want with that property. You can build a house on it, a business. You can plant flowers, grow daisies. Whatever you want to do with it, it's your property. You own it. And the only way somebody can take your property is if they steal it. Am I right? That's why the government invented eminent domain."

And steal it they will. Los Angeles used the power and threat of eminent domain to take a popular Hollywood bar and numerous other small businesses along Hollywood and Vine so that the city could hand the land over to private developers planning to build a W Hotel and million-dollar condos.

Carey says what goes around, comes around, and maybe the W Hotel should look over its shoulder, since someday the government might decide to take that land - again. "[W]ho knows, maybe 20 years from now, just when the W Hotel is making a profit, somebody with deeper pockets is going to come along, steal their land with eminent domain, and build something better."

Just down the freeway from Hollywood and Los Angeles sits Anaheim, where Mayor Curt Pringle says the city is experiencing "great" redevelopment results without using eminent domain. The Reason.tv video illustrates how Pringle has been able to revitalize parts of Anaheim by working with property owners instead of taking their property.

Full Video Online

The new Reason.tv Drew Carey video, Redevelopment: A Tale of Two Cities, is online at http://reason.tv/video/show/58.html. Reason.tv's video examining eminent domain abuse in San Diego, California, is here and an archive of Reason.tv videos hosted by Drew Carey is here.

About Reason.tv

Reason.tv is an online community showcasing the best libertarian ideas and videos on the Internet. Reason.tv gives you the opportunity to create videos, share videos and suggest topics for Drew Carey's upcoming documentaries. For more information, please visit www.reason.tv.

About Reason Foundation

Reason Foundation is a nonprofit think tank dedicated to advancing free minds and free markets. Reason Foundation produces respected public policy research on a variety of issues and publishes the critically acclaimed monthly magazine, Reason, and its website www.reason.com. For more information, please visit www.reason.org.

Contact

Chris Mitchell, Director of Communications, Reason Foundation, (310) 367-6109

Reason.tv Drew Carey Video Highlights Eminent Domain Abuse in San Diego

Thu, 15 Nov 2007 15:25:00 EST

Los Angeles (November 15, 2007) – Buoyed by the Supreme Court's dubious Kelo decision, governments are increasingly abusing eminent domain to take homes and small businesses so private developers can build malls, condos and office complexes.

In his latest Reason.tv video, Drew Carey takes an in-depth look at one such example of "eminent domain gone wild." A boxing gym that takes at-risk kids off the streets and helps turn their lives around might be great for the community, but it doesn't generate the tax revenue that luxury condos would. So National City's government teamed with private developers to plot the Community Youth Athletic Center's demise and replace it with high-rise condos. Reason.tv shows Ron Morrison, mayor of National City, saying the gym has tried to "sensationalize this as if the city is doing something bad to you."

"The mayor's statement shows exactly what is plaguing this country and why eminent domain abuse is so rampant. Too many politicians haven't read the Constitution and don't see anything wrong with taking land from you or me so they can hand it over to someone else to rake in more tax money," said Adrian Moore, vice president of research at Reason Foundation. "We're not talking about using eminent domain to build a school or vital freeway here. The mayor wanted to bulldoze a perfectly good gym that provides invaluable help to low-income kids, and the community, so that rich people could get richer. It's disgraceful."

Amidst the public backlash and groundswell of support for the gym, the developer did an about-face late this summer, saying the gym could stay and the condos would be built around it.

End of story? Not quite. The developer's promises aren't legally binding and the city has designated the gym, and 700 other properties, as "blighted." As such, National City claims it has the power to use that "blighted" designation to condemn the gym anytime in the next decade. So instead of living in constant fear, the gym and Institute for Justice have filed a lawsuit challenging the city's power to use "blight" and eminent domain.

Full Video Online

National City: Eminent Domain Gone Wild, hosted by Drew Carey, is available online at: http://reason.tv/video/show/56.html.

Previous Reason.tv Drew Carey videos are Gridlock: Hell on Wheels and Medical Marijuana.

About Reason.tv

Reason.tv is an online community showcasing the best libertarian ideas and videos on the Internet. Reason.tv gives you the opportunity to create videos, share videos and suggest topics for Drew Carey’s upcoming documentaries. For more information, please visit www.reason.tv.

About Reason Foundation

Reason Foundation is a nonprofit think tank dedicated to advancing free minds and free markets. Reason Foundation produces respected public policy research on a variety of issues and publishes the critically acclaimed monthly magazine, Reason, and its website www.reason.com. For more information, please visit www.reason.org.

Contact

Chris Mitchell, Director of Communications, Reason Foundation, (310) 367-6109

American Voters Protect Their Property Rights

leonard.gilroy@reason.org (Leonard Gilroy) — Wed, 15 Nov 2006 00:00:00 EST

McClatchy-Tribune News Service

The Supreme Court's controversial 2005 eminent-domain decision, which gave the government a green light to take private property and turn it over to developers for "economic development," still has voters riled up. Last week, voters in nine states, including Florida, passed initiatives protecting their property rights and limiting the government's power to take their homes and businesses.

Most Americans were rightfully incensed that government could arbitrarily evict people from their homes, businesses and churches simply because it could generate more tax revenue if the properties were turned into condos, offices and hotels. Eminent domain is supposed to be used only used to acquire private land for clearly defined public uses - such as roads and schools—but the court's Kelo decision opened the door for government to condemn property for almost anything that it could argue had a public "benefit."

In the year since the Supreme Court's ruling, local governments have threatened eminent domain or condemned more than 5,500 homes, businesses and churches so that they could be transferred to another private owner, according to the Institute for Justice.

Elected officials in the predominantly black city of Riviera Beach, for example, plan to condemn the homes and businesses of more than 5,000 residents to build an 800-acre private redevelopment.

And voters are fighting back. On Nov. 7, more than 80 percent of voters in Georgia, Michigan, New Hampshire and South Carolina approved constitutional amendments that forbid use of eminent domain for economic development. Arizona, Florida, Oregon, Nevada and North Dakota also passed eminent-domain limits.

In all, 35 states have now curbed eminent domain abuse since the Kelo ruling.

The next battleground is the issue of regulatory takings. What should happen when the government passes a new law or changes zoning laws in ways that destroy the value of your home or land?

These "regulatory takings" have resulted in huge financial losses, or even total ruin for homeowners as aggressive land-use regulations and anti-sprawl measures ban landowners from using their property in the ways they intended.

In 2004, Oregon voters required the government to either financially compensate homeowners for their losses or to waive the zoning regulations for that property. On Nov. 7, Arizona passed a similar "Kelo-Plus" law combining eminent domain and regulatory takings reform.

Regulatory takings reform faces higher hurdles to voter appeal than pure eminent-domain limits. Environmental groups who wouldn't dare oppose eminent-domain laws poured millions into campaigns against the regulatory takings bills. In California, farmers and rural land owners in the Central Valley supported the measure only to see urban dwellers in San Francisco and Los Angeles buy into claims that the government would go bankrupt if it had to pay damages to homeowners whenever it passed a law destroying their land values.

Overall, it's obvious that since the Supreme Court's dubious eminent domain ruling that property rights are now ingrained into our national consciousness. Americans understand that the government is there to protect their property, not to take it away. And they've sent that message loud and clear.

Leonard Gilroy is a certified planner and policy analyst at the Reason Foundation. An archive of his work is here. Reason's eminent domain research and commentary is here.

Protecting Property Rights in a Landslide

leonard.gilroy@reason.org (Leonard Gilroy) — Wed, 08 Nov 2006 00:00:00 EST

Besides Democrats, and anyone hoping for gridlock in Washington, the big midterm winners were homeowners in the nine states that passed initiatives protecting property rights and reigning in government's power to take homes and businesses.

These initiatives were sparked by the Supreme Court's controversial ruling in the Kelo vs. New London decision last summer, which gave the government a green light to use eminent domain to take private property and turn it over to developers for "economic development" purposes.

Most Americans were rightfully incensed at the notion that government could arbitrarily evict people from their homes, businesses, and churches simply because it could generate more local tax revenue if these properties were redeveloped as condos, offices, and hotels. Traditionally, eminent domain was only used to acquire private land for clearly defined public uses—such as roads, parks, and public buildings�but Kelo opened the door for government to condemn property for almost anything that it could argue had a public "benefit."

The backlash was immediate. In the year since the Kelo ruling, over two dozen states passed legislation to curb eminent domain abuse, and on Tuesday, voters passed a variety of measures intended to do the same thing.

An overwhelming majority of voters in Florida, Georgia, Michigan, New Hampshire, and South Carolina approved constitutional amendments that forbid the use of eminent domain to transfer land from one private party to another for economic development purposes, as did Louisiana voters last month. Similar voter-initiated constitutional amendments passed in both North Dakota and Nevada, though Nevadans will need to pass the same amendment in 2008 for it to take effect.

Of all states, voters in Oregon have taken one of the strongest stands in recent years to protect their property rights. Measure 39, a statutory initiative that reigns in eminent domain abuse, passed yesterday by more than a two-thirds margin. Moreover, Measure 39 followed on the heels of voters' passage of Measure 37 in 2004, which was designed to protect Oregonians from "regulatory takings," a far more pervasive threat to private property rights than eminent domain abuse.

Local governments routinely pass restrictions on the ability of property owners to use their land in ways legal at the time they bought their property—resulting in enormous losses to private property values—without compensating owners for these impacts. After several decades enduring egregious regulatory abuse, Oregonians passed Measure 37 to require government to either pay landowners for these "regulatory takings," or waive the regulations.

Voters in Arizona followed Oregon's lead Tuesday and passed Proposition 207—the Private Property Rights Protection Act—by a 65-35 margin, breaking new ground in the process. Prop 207 was designed to address both eminent domain abuse and regulatory takings in one comprehensive set of property rights protections in what has come to be known as a "Kelo-Plus" initiative. Untested prior to this election, the passage of Prop 207 establishes "Kelo-Plus" as a feasible strategy to target the two biggest threats to property rights in one fell swoop.

However, two similar "Kelo-Plus" measures failed to pass. Despite garnering over 3 million votes, California's Proposition 90 was defeated by a 52 to 48 margin. Idaho's Proposition 2 also failed to pass. Opponents of these measures—including environmental groups, municipal associations, and urban planners—mounted a vigorous campaign to defeat them, outspending measure proponents by a wide margin. Voters in Washington state also defeated Initiative 933—a regulatory takings measure modeled after Oregon's Measure 37—by a 56-44 percent margin.

Despite the success in Arizona and Oregon, the defeat of the California, Idaho, and Washington measures indicates that regulatory takings reform faces higher hurdles to voter appeal than pure eminent domain measures. Not only do they generate more opposition from a variety of special interests that benefit from government's unfettered ability to regulate, but the issue is inherently complex and largely unfamiliar to voters.

And given that regulatory takings frequently occur in conjunction with zoning regulations preventing development on agricultural land or open space, the issue resonates more with rural voters than city dwellers, as the geographic breakdown of voting for California's Prop 90 suggests. Support for Prop 90 was strongest in the Central Valley, the Northeast, and Southern California, while opposition centered in the Bay Area and Los Angeles County. The key for future campaigns will be to craft a message that more effectively connects with urban voters.

However, viewed in total, the results of yesterday's election indicate that the property rights movement is alive and well. Millions of citizens nationwide sent a clear message to elected officials: they care very deeply about property ownership, and they're willing to go to the ballot box to protect their rights.

The concept of private ownership of real property is a fundamental part of our society and one of the core freedoms that our country and economy is built on. As the election showed, Americans increasingly understand that the government is there to protect the right to that property, not to take it away.

Leonard Gilroy is a certified planner and policy analyst at the Reason Foundation. An archive of his work is here. Reason's eminent domain research and commentary is here.

Defending the Right to Steal Your Property

leonard.gilroy@reason.org (Leonard Gilroy) — Fri, 03 Nov 2006 00:00:00 EST

A coalition of environmental groups, city and county associations, and urban planners has mounted an all-out campaign of deception and distortion to dissuade voters in California, Arizona, and Idaho from casting ballots for initiatives that would give those states some of the strongest property rights protections in the country.

The reason is clear: opponents of these measures know full well that their passage would spell the demise of government's ability to steal homes and private property.

When a thug steals someone's wallet, we unambiguously call it theft. But when government slaps so many regulations on private land as to destroy its value, planners and regulators, in true Robin Hood form, justify their actions as necessary to promote the "common good" and the "public interest." Similarly, when a redevelopment agency uses eminent domain to take homes and businesses to give them to a private developer promising wealthier tenants and higher local tax revenues, it justifies this abuse as advancing a "public purpose."

These are exactly the kinds of abuses that California's Proposition 90, Arizona's Proposition 207, and Idaho's Proposition 2 are designed to prevent.

First, they would restrict the use of eminent domain to a limited set of legitimate public uses—such as building roads, creating parks, and acquiring land for public buildings�and forbid its use on economic development grounds. They would also prevent governments from transferring land from one private owner to another.

As it stands now, local governments routinely get away with this, picking winners and losers among landowners for the sole purpose of generating higher tax revenues. One need look no further for an example than the Cottonwood Christian Center, whose property the city of Cypress, California attempted to take and turn over to Costco. How could they justify this? Costco would have paid more taxes.

Governments are always thirsty for more tax revenue, and when they have the power to quench their thirst through eminent domain, no one's home, business, or church is safe. Hence, these ballot measures aim to protect landowners by reining in the government's expansive power to force desired land use outcomes through eminent domain.

And they would go even further by preventing governments from adopting new regulations that destroy private property values without compensating the owners for those impacts. This is a crucial provision, as "regulatory takings" are far more pervasive than eminent domain abuse and occur any time a local government passes restrictive zoning laws or prevents private land development to preserve farmland and open space, for example. If landowners were compensated for their losses, there would be no objection. But these actions are rightly viewed as theft, since private landowners are forced to bear the costs of providing amenities enjoyed by the community-at-large.

It's no wonder that those that gain the most from the public theft of private property are the loudest voices against these initiatives. Who benefits from government's five-finger discount? Government, first and foremost, which explains why the League of California Cities, the California Association of Counties, and the California Redevelopment Association are among the most vocal opponents and have poured millions into the No on 90 campaign in California, for example. Similar groups have lined up against the Arizona and Idaho measures.

The list of other beneficiaries is long and includes the large developers that reap redevelopment subsidies and cheap land stolen through eminent domain, as well as the environmental and planning advocacy groups whose agendas are advanced largely through government's unfettered ability to pass regulations that limit urban growth by taking private landowners' rights away from them.

Given the widespread public outrage over eminent domain abuse that followed the Supreme Court's Kelo vs. New London decision in 2005, opponents have realized that fighting eminent domain reform is a losing battle, so they've opted to focus their attack on the regulatory takings component of the initiatives, painting all manner of outlandish horror stories and doomsday scenarios in a desperate effort to taint public opinion. In reality, however, these initiatives are far from radical.

First, they exempt regulations adopted in the interest of promoting public health and safety, such as fire and building codes, pollution controls, and nuisance regulations. Second, they grandfather in all existing laws and regulations currently on the books and would only apply to new regulations. Opponents' claims that these measures would roll back land use and environmental protections are patently false; everything currently on the books would stay on the books.

But most importantly, they provide a needed balance between government regulation and private property rights. Landowners pay fair market value for their property based on the rules in place when they buy it. If government passes new regulations that limit a landowner's rights and reduce their property's value, it's only fair that they be compensated for that impact. This would lead to better decision making, as government would be obliged to account for the full range of costs and benefits associated with new rules and regulations it considers for adoption.

Clearly, many Californians, Arizonans, and Idahoans are rightfully concerned about the security of their homes, businesses and property, as nearly 2 million citizens signed petitions to get these measures on the ballot. They understood the need to establish reasonable and fair property rights protections in state law.

Hence, they should ignore the opponents' self-serving, misleading rhetoric. Voters in these states have a golden opportunity to stand up for their property rights on Tuesday. In doing so, they can send a strong and necessary reminder that the fundamental purpose of government is to protect our rights, not to undermine them.

Leonard Gilroy is a certified planner and policy analyst at the Reason Foundation. He is the author of the study "Analysis of California's Proposition 90" and an archive of his work is here. Reason's eminent domain research and commentary is here.

Robert Redford and Property Rights

sam.staley@reason.org (Samuel Staley) — Wed, 01 Nov 2006 00:00:00 EST

California's Proposition 90 has generated a lot of heat so far. The Sierra Club has called the effort to protect small homeowners and businesses from arbitrary government regulation and property seizures "evil."

Now, the Natural Resources Defense Council, a Washington, D.C. based environmental advocacy organization, has enlisted famed advocate, actor, and filmmaker Robert Redford to the cause. "Prop 90," Mr. Redford writes in a letter to the organization's supporters in the over-heated rhetoric common for advocacy letters, "is the single most dangerous threat that has ever been leveled at our state's environment."

But what caught my eye was not the unfounded claims of Prop 90's potential effect. Rather, it was the brazen claim in that he considers himself a private property rights advocate. "Well, I'll be first in line to defend private property and protest government seizure," he said.

Unfortunately, he won't. Experience shows that the kind of investment Mr. Redford claims to have for property rights won't be acted on until it impacts him personally. Mr. Redford is so far removed from the reality faced by victims of the government abuse that is the target Prop 90 that his claims need to be discounted.

Mr. Redford has three things going for him that suggest he is unlikely to ever face the kinds of restrictions on his livelihood that motivate support for Prop 90 in California.

First, Mr. Redford is wealthy, and wealthy property owners aren't typically subjected to the kinds of uncompensated regulations and eminent domain actions that Prop 90 regulates. It's the low income, older neighborhoods, or small land owners in agricultural areas that experience the brunt of government's bad behavior.

Second, environmental groups and other advocacy groups are unlikely to challenge Mr. Redford if he behaves badly, granting him de facto regulatory relief. He has a well-earned reputation as a high-profile advocate for environmental causes. Suing him, or using regulation to limit his property rights, could sacrifice future support. Unlike other property owners, any sin Mr. Redford will make will be weighed against his total effort to advance their agenda.

Third, Mr. Redford is a nice guy and influential. Regulators are people too, and they don't often subject their friends or influential community leaders to unwanted takings or severe restrictions on their property. Hercules, California can initiate eminent domain proceedings against Wal-Mart to seize their land, or regulate its property to the point it no longer operate profitably on its land, in large part because Wal-Mart is unpopular and can't rally public support. Wal-Mart doesn't have a fan base, just customers more than willing to shop somewhere else if they aren't around.

So, it's hard to take Mr. Redford's claims about defending property rights seriously. On an intellectual level, he may well understand the importance of property rights to a free society. And, he may understand them in a practical way as it relates to his property. But, experience suggests his commitment to protecting other people's property rights will not be on the front burner until his rights are threatened directly.

Farmers, small businesses, and low and middle income homeowners face regulatory threats to their livelihood everyday in California, and Prop 90 is intended to protect them. Farm families suffer real economics losses when local communities decide to prohibit land development to protect open space and an agricultural community character. Small businesses have to dig deep into already shallow pockets when they are forced to relocate because local revitalization plans decide downtown is more suitable to a T.G.I. Friday's, an Applebee's, or a Marriott Hotel than a family-owned and operated deli. Homeowners have to give up more than just memories when city councils decide their neighborhoods would look better as upscale luxury condos and office buildings than a cluster of working class homes, dry cleaners, corner restaurants, or family lawyers.

Right now, a very small number of these people can tap into free legal counsel from a handful of public interest law firms like the Institute for Justice and the Pacific Legal Foundation. But, the vast majority can only be protected through broad legislative reform like the provisions outlined in Prop 90.

Most Californians can't wait for the Robert Redford's of the world to protect them.

Samuel R. Staley is director of urban growth and land use policy at Reason Foundation and co-author of the new book "The Road More Traveled" (Rowman&Littlefield). An archive of his work is here. Reason's eminent domain research and commentary is here and California-specific research is here.

Taking 'Takings' to the Voters

Mon, 30 Oct 2006 00:00:00 EST

The Weekly Standard

The life story of Leo Hayashi, 75, is the stuff of Hollywood epics. Arriving penniless on these shores at age 17, a refugee from war-ravaged Japan via a Siberian concentration camp, he painstakingly scaled the heights of the American dream. He put himself through college, started a one-man real-estate company, and raised a family. Then the trouble began.

Thirty years ago, he bought a piece of land in Brea, near Los Angeles, as a nest egg. But recently city authorities proposed draconian new regulations that, if approved, will nullify most of the long-accumulated value of his land: The 300-acre property will be allowed to hold only 15 houses—instead of the 400 permitted when he bought the land—and only if the owner swallows the cost of a new fire station, sewage lines, and other infrastructure.

Why are they doing this? The official reason is that the slope of the property doesn't allow more homes. But the slope is no steeper now than when Hayashi bought it. The real reason, Hayashi believes, is that the city commission wants to preserve the hills and end development. "I spent years setting aside money to buy this land, paid taxes on it for 30 years," he laments. "For what?"

Not much--if a coalition of big government and big business defeats Proposition 90 in California this November. This proposition would prevent cities like Brea from using their zoning and other regulatory powers to destroy property values without compensating owners like Hayashi. Three other Western states—Idaho, Arizona, and Washington—have similar initiatives on their ballots.

This growing movement against regulatory takings follows hot on the heels of the "Kelo revolution"—the widespread movement to limit eminent domain takings that was sparked by the infamous Supreme Court Kelo decision supporting New London, Connecticut's use of eminent domain to take property from poor home owners and give it to rich developers. Yet, as Hayashi's lawyer, Greg Reiger, explains, what Brea is doing to Hayashi is actually far worse than what New London did to Susette Kelo. "If Brea had used its condemnation [eminent domain] powers instead of its regulatory powers to take away his land, it would have had to at least pay him fair market value," he points out. But with regulatory takings—which leave you in possession of the land but take away the most profitable use of it—there is no compensation at all.

Hayashi is not the only victim of overzealous planners bent on combating sprawl or preserving open space or protecting the environment. Ever since the Progressive Era popularized the notion that expert management of land would alleviate all manner of social ills, notes Stephen J. Eagle, a law professor at George Mason University, land-use planners have employed their regulatory powers not to enjoin nuisances, the original purpose of zoning, but to ensure that all uses of private property conform with their vision. The result is that millions of property owners—farmers, homeowners, small businesses, churches—have faced financial losses, even total ruin, as ever more aggressive land-use regulations have barred them from any use of their property that doesn't serve the planners' ends.

Oregon, for instance, home to arguably the most draconian land-use policies in the nation, drew growth boundaries around urban areas to combat sprawl. City cores were lavished with government subsidies for mass transit and other infrastructure, while suburbs and villages were starved of the most basic infrastructure. Development was severely restricted in these outlying areas, as well: Farmers were prevented from subdividing their property; individuals had to jump through hoops to get permits to build homes; and loggers were barred from harvesting trees in their own forests. Overnight, farmers and families lost their nest eggs, and businesses shut down. In 2000, the state estimated that these restrictions forced private owners in Oregon to absorb $5.4 billion in uncompensated costs each year.

These restrictions alienated even Oregon's deep blue voters. Two years ago, they overwhelmingly approved Measure 37, a ballot initiative requiring government to compensate owners for losses stemming from regulations that reduce property values in the name of providing public goods. This move--combined with the public outrage over the Kelo decision—has sparked a veritable wildfire in the West to give property owners "comprehensive" protection from the government.

Indeed, while voters in many other states will vote on ballot initiatives to curtail eminent domain abuses, those in California, Idaho, and Arizona will vote on twin protections against eminent domain abuse and regulatory takings. In Washington, which already has relatively decent constitutional protections against eminent domain abuses, there is a stand-alone initiative targeting regulatory takings.

But in each state, these initiatives face stiff opposition from a powerful coalition of local government organizations (such as the League of Cities), land-use planners, and environmental groups.

In a classic piece of demagoguery, this coalition is trying to portray the initiatives as the product not of local outrage against draconian land-use and environmental regulations, but of radical property rights groups backed by wealthy carpetbaggers—such as Manhattan real-estate investor Howie Rich--hell-bent on undoing decades of benevolent land-use planning and environmental protection. To be sure, Rich and others have contributed funds to local groups for signature-gathering drives. But the attempt to discredit that basic exercise of political rights is reminiscent of George Wallace's attempt to invalidate the civil rights movement by tying it to a bunch of meddlesome Yankees. (Full disclosure: Contributions from Howie Rich make up about 0.01 percent of the annual revenue of our employer, the Reason Foundation.)

But the hypocrisy of this tactic was recently exposed by Steven Greenhut of the Orange County Register. He reported that the California Public Securities Association—a group of financiers and attorneys, much of whose business consists of providing services to local governments--has donated $400,000 to California's "Vote No on Prop. 90" campaign. Similarly, Forest City Residential, a Cleveland-headquartered real estate company with many building projects in California, has contributed $250,000 to the "no" campaign. These businesses are big enough to absorb the costs of complying with wetlands and other land-use regulations. What they want most is a good relationship with local authorities so that they can obtain speedy variances and building permits for their mega-projects. "Their support is motivated by business, not ideological reasons," says David Gilliard, spokesperson for the "Protect Our Homes" or "Yes on 90" coalition. "This is simply Big Business's attempt at pay-to-play." No developer has made donations anywhere near this large to the pro-initiative side, he notes.

The coalition's most disturbing disinformation is the claim that these initiatives are not a spontaneous outgrowth of local anger against over zealous regulations. Yet one has to look no further than the history of Washington's Initiative 933 (I-933) or Property Fairness Act to realize how out-of-touch this argument is.

Washington passed the Growth Management Act in 1990, when the movement to stop "unplanned" growth was at its height. The act required local governments to incorporate environmental, open-space, shoreline, and other protections into their development goals. However, out of concern for the state's many farmers, it also provided that new regulations would not result in loss of land values.

Over the years, however, while the state has passed several bills to buttress the environmental protections in the Growth Management Act, it has done precious little to protect property rights. Washington farmers, among the hardest hit, have been pleading for more balance—in vain. Their frustration--and not outside ideologues or greedy big developers--is the driving force behind I-933.

Initiative opponents are also claiming that property rights groups in Arizona, California, and Idaho are exploiting the rage against Kelo and eminent domain abuses to sneak in protections against regulatory takings. But the truth is, you can't stop eminent domain abuses without regulatory takings reform. As Mimi Walters, a Republican assemblywoman in California, explains, if cash-strapped local governments don't have to pay for regulatory takings, they can downzone property—or restrict the development that can be done on it—to lower its value and then use their eminent domain powers to acquire it on the cheap. This is not a theoretical worry. Some cities in California have actually drawn plans to this effect.

But the cleverest argument that opponents deploy is that requiring compensation for regulatory takings would decimate local budgets because government would have to pay land owners just to perform its basic zoning and environmental safety functions. Ironically, no less a champion of individual liberty than Barry Goldwater was briefly seduced by this argument when a regulatory takings measure was first put before Arizona voters in 1994. He soon changed his mind, but the damage was already done and the measure was defeated.

Yet this is wrong. For starters, all four initiatives exempt government from any liability for regulations pertaining to public health or safety. Furthermore, each goes to great lengths to protect local budgets from getting flooded by compensation claims for devalued property. The Arizona, Idaho, and California measures limit the potential claims by requiring reimbursement only for future regulations. The Washington initiative applies retroactively to some regulations--but gives authorities the option of waiving the regulations instead.

Clearly, the point of the initiatives is not to prevent government from providing essential land-use or environmental protections. Rather, it is to ensure that if it wants to do more, it do so by digging into its own pocket--not raiding the private homes and businesses of individuals.

Most voters understand this, if the polls are any indication. The Washington initiative on regulatory takings is 16 points ahead, according to an Elway poll. The initiatives in other states that offer comprehensive property rights protections are showing even bigger leads, with Republicans and Democrats supporting them in equal measure. Prop. 90 in California is ahead by 26 points, [though down from a 37-point lead in September] according to a mid-October poll by Datamar Inc.

This is not to say that things won't change come Election Day. Initiative opponents have twice before killed initiatives by pulling some last-minute trick. They torpedoed the 1994 Arizona initiative by obtaining Goldwater's support. And they slew a similar initiative in Washington a year later by releasing a non-peer-reviewed study showing that local governments would suffer budgetary Armageddon if it passed.

What would really shield these initiatives against such scare tactics is the support of prominent Democrats. Yet Democrats veer between silence and hostility. "When it comes to regulatory takings," notes Mimi Walters, "Democrats positively run scared." On the one hand, these initiatives help traditional Democratic constituencies such as minorities and the poor—who are the least able to hire expensive lawyers to fight unreasonable land-use decrees. (In California, for instance, the Black Chamber of Commerce backs the initiative.) On the other hand, these initiatives are deeply offensive to liberal environmental and other interest groups that pump lots of money into Democratic campaigns.

Democrats then are at a crossroads. They can either reaffirm their old liberal commitment to ordinary hard-working Americans--the Hayashis of the world—or they can push the big government causes of the Sierra Club and its ilk. If they choose the Sierra Club over Hayashi, they will be ceding not only the moral high ground but the political grassroots as well.

Shikha Dalmia is a senior analyst at the Los Angeles-based Reason Foundation, and an archive of her work is available here. Leonard Gilroy, a certified urban planner, is a policy analyst at the Reason Foundation, and an archive of his work is available here. Reason's eminent domain research and commentary is available here. This article was originally published in The Weekly Standard.

Beware the Bogus Measure 37 Poll

leonard.gilroy@reason.org (Leonard Gilroy) — Fri, 27 Oct 2006 00:00:00 EDT

Voters beware. Opponents of property rights measures on the ballot in California, Arizona, Idaho, and Washington have released a deceptive and dishonest poll to taint public opinion, proving once again that all is fair in love and war and politics.

A poll released Wednesday by the Defenders of Wildlife and the Izaak Walton League of America�two self-avowed opponents of the property rights measures on the November ballot�purportedly demonstrates "buyers remorse" among Oregonians who voted in Measure 37 in 2004. In an effort to address decades of regulatory abuse by Oregon governments, Measure 37 protected landowners by requiring that they be compensated when governments pass regulations that reduce the value of their property, or have the regulations waived. Despite a vigorous opposition campaign waged by environmentalists, Oregonians understood the importance of protecting property rights, passing the measure by a 61 to 39 percent margin.

Given that Measure 37 inspired these other states to place similar measures on the ballot, it makes sense that opponents would launch an October surprise to try and discredit it. It's a classic "chop off the head of the snake" approach. Unfortunately for them, the transparent bias in this poll is on full view for the world to see.

Let's start with the basics. The poll claims that if voters had to vote again, Measure 37 would lose by a two-thirds margin. But a quick glance at the findings indicate that this was a "push poll" of the most blatant variety. "Push polls" come straight out of Dirty Politics 101. Interviewers ask leading questions that steer respondents to a predetermined outcome.

In this survey, interviewers asked a series of questions that included cherry-picked, blatantly misleading "horror stories" of Measure 37 claims, as well as questions about "chaos" and "uncertainty" under Measure 37, development on "previously protected farmland and open space," and exorbitant costs. How would you expect the average person respond to Measure 37 when they're presented with a parade of horribles along the way? The poll report even tacitly acknowledges this by stating that, "[a]fter voters are read descriptions of specific cases under Measure 37, their opinion towards the measure grows even less favorable."

Of course it does�when you drive a bus to a predetermined location, it's hardly shocking or newsworthy when the passengers get off the bus there.

Just imagine that the survey had instead asked people their opinion about Measure 37 after hearing statements like, "Measure 37 has allowed long-time landowners to get their property rights back after having had them stolen by government." Or, "Despite the $5 billion in claims, governments in Oregon actually have not paid a dime to compensate aggrieved landowners, instead giving them back the rights they had when they bought their property." Or, "Oregon locked all but 4 percent of the total state land in exclusive farm or forest use, taking thousands of property owners' rights away in the process, so Measure 37 gives them a needed release valve if they want to retire or if their property is not valuable for farming or forestry." If the questions were framed this way, it doesn't take a brain surgeon to realize that the poll would have produced drastically different, and far more favorable, results.

The most intellectually dishonest part of the poll is that respondents were asked to respond to a misrepresented handful of Measure 37 claims taken completely out of context, a non-representative and miniscule fraction of the almost 3,000 claims that have actually been filed. A large share of these claims are simply for small landowners receiving the ability to build a few houses on their property. Further, in only one case has a landowner actually started to develop their land after filing a successful Measure 37 claim. Many landowners simply filed a claim to get the rights back that they paid for when they bought their property and have no intention of actually developing it.

Lastly, the fact that the poll report fails to include a detailed methodology�such as the actual survey and a description of the sampling methods�is a strong indication of its inherent bias. National survey firms routinely include this information to make the survey results and methods transparent to readers. How are we to tell if the small sample of 405 Oregon voters polled were genuinely selected at random and are representative of the population? Readers have no way to evaluate quality of the data and whether the sample accounts for geography, income, gender, political affiliation, etc. of respondents. If the pollsters have nothing to hide, then why not release their methods?

Voters should not be swayed by false claims about Oregonian's public sentiment on Measure 37. It's clear that this is a blatant attempt by those with a vested interest in big government to sour the debate in California, Arizona, Idaho, and Washington and convince voters to reject ballot measures clearly intended to protect their property rights.

This poll reveals just how desperate the opponents of stronger property rights protections are. Since they cannot win the voters hearts and minds in an honest debate, they've chosen the time-tested route of dirty politics: confuse the voters through obfuscation and deception.

Prop 90 Protects Your Home

leonard.gilroy@reason.org (Leonard Gilroy) — Fri, 20 Oct 2006 00:00:00 EDT

San Francisco Examiner

Opponents of Proposition 90 are calling it a "taxpayer trap," when in fact it would protect taxpayers' basic property rights and hold government fiscally accountable for its actions.

The government shouldn't be able to take your home or land so it can hand it over to another private party. And if the government passes a new law that substantially lowers the value of your property, it should have to compensate you for those losses.

Those are the protections that Proposition 90 would bring to homeowners and small businesses.

All land use and environmental regulations currently on the books would stay on the books, and are exempt from Proposition 90. All of them. The law would also allow government to pass laws directly relating to public health and safety concerns without compensating landowners. Thus, the claims that Proposition 90 would bankrupt local governments are false.

It's only going to cost the government if they try to take your home or destroy the value of it with new regulations. It doesn't seem like too much to ask for politicians to seriously weigh the need for a new law with the costs of taking your land or destroying its value - before they pass new laws. If they choose to move forward, they'll do so with the knowledge that you have to be compensated.

Proposition 90 creates the incentive for fiscal discipline, as it will require governments to carefully evaluate the economic impacts of a proposed regulation and how any related compensation to property owners would rank among the many competing priorities in the budgeting process.

By requiring the economic costs associated with regulation to be valued, Proposition 90 would facilitate more efficient decision making, as policy makers would be better able to compare the costs and benefits of public action. It would also promote transparency, as the full costs of government action would become visible and explicit.

Once those costs become transparent, the government will have a strong incentive to pursue alternative methods of achieving its policy goals that have low impacts on property rights (and thus lower potential for compensation claims).

Opponents also forget that compensating landowners isn't the only choice. They ignore the fact that local governments already have the ability to selectively waive regulations for individual property owners�a zero-cost alternative to compensation. Lawmakers can issue things like conditional use permits that would restore property rights to landowners at no cost to taxpayers.

The bottom line is this: under Proposition 90, any costs incurred by governments as a result of new regulation would be costs incurred by choice. It would no longer be acceptable to require individual property owners�not the public-at-large�to bear the costs of providing the public benefits associated with land use regulation. In this way, Prop 90 would simply ensure that any future costs imposed by regulation would be distributed in a fair and equitable manner.

Proposition 90 isn't a trap, it's a warning to overzealous lawmakers who might want to take your home to build stores, condos or hotels or pass regulations that lower your land's worth.

Warning: if you try to take a Californians' home or destroy its value, you're going to have to pay fair market value.