Inside ALEC

States Should Establish Ombudsmen To Protect Private Property Rights

Utah leads the way

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.

Leonard Gilroy is Director of Government Reform





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