Defending the Right to Steal Your Property

Self-serving opponents of property rights measures aim to sour debate, deceive voters

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´┐Żand 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.

Leonard Gilroy is Director of Government Reform





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