I read and responded to an opinion column in the Evansville Courier Press concerning eminent domain by D. Eric Schansberg of the “Indiana Policy Review.” He discusses HB 1010 and says, among other things:
A philosophical and practical problem with eminent domain is that it arbitrarily violates the sanctity of private property. When is it ethical to take another person’s property? When is it ethical to use the government to take another person’s property? In most value systems, that would be ethical only when that person’s use of the property causes direct and significant harm to others.
At this point, I confess that I stopped reading. I have a question with this underlying premise that, left unanswered, prevents me from considering arguments founded on the premise.
What is sacred about real property? The government takes our private property in the form of taxes every day when it takes sales taxes, it takes our personal property twice per year in the form of property taxes, it takes our property every week in the form of payroll taxes. Often times, the government turns around and gives that money to other private entities in the form of subsidies and incentives.
Before I can buy into the rest of the argument, I would have to know why real property is inherently more sacred than personal property. If using eminent domain on real property can enhance the local economy, thereby lowering the percentage of my personal property the government needs to operate, then I’m at least willing to consider it.
I’m not saying that I’m necessarily convinced that real property and personal property are equivalent in the context of government taking, but neither do I think the sanctity of real property can be taken as given when government is permitted to take personal property every day.
I think the fundamental difference between real property and personal property is that your home is on real property. Asking someone to give up a few dollars, or their car, or thousands of dollars, or some time, etc, is, I think, inherently and (usually) significantly different from asking someone to give up their home.
Hmm. Then maybe this bill restricting the government’s eminent domain powers should be limited to homesteads, perhaps to individuals who have owned their home for x years. Certainly, I sympathize with someone who has owned a home for 20 years being forced out a lot more than with an absentee landlord who has allowed his property to become an eyesore or a multinational corporation that owns a business property.
Doug, as you know, the taxing power applies equally to real property, so in effect, the government is “taking” a little piece of the value of your real estate with each property tax bill.
But I do think that our laws recognize on type of real property that we hold more dear that most other forms of property: our homes. The Homestead credit permits a couple to protect $30K in equity in their homes from the claims of unsecured creditors, and for most folks, that’s enough to save their home.
I think that most of the gut reaction to Kelo results from a sense that the government should not be taking away people’s homes, at least not for the benefit of private developers.
I still don’t see what the big damn deal was about Kelo. If the results in the underlying litigation were problematic, it’s because the underlying law was flawed. It’s as if people hadn’t thought about eminent domain as something that could happen to them before and are suddenly convinced the government is going to buldoze your home.
I definitely think reaction to Kelo was overblown. If the Supreme Court got the law wrong, it was only incrementally. From the coverage, you would’ve thought that the Supreme Court approved taking Aunt Millie’s home without compensating her and then turning around and giving it to a Starbucks free of charge.
As it was, the City had approved a mixed redevelopment plan that involved both public and private uses — upscale condos and sale to private business, but also a river walk, marinas, and a park. Most of the bluster I heard was against use of eminent domain at all and wasn’t confined to the issue of whether eminent domain could be used to facilitate a mixed public/private development plan.
I agree. It was the usual half-truth or partial story you get after a “landmark” Supreme Court decision, where the press lifts a paragraph or two from a 38 page opinion (with 20 page dissents and/or concurrences) and purports to be able to use that to say what the court meant or what the implications are. It’s worse than Greta van Sustern or any of those other Court TV talking heads trying to predict what the defense or prosecution is going to do in a high profile case that hasn’t even gone to trial yet. They really should leave legal analysis to lawyers. Of course, I’m biased. (Plus, if we had to suffer through all eightyjillion pages of an opinion for Con Law, the media should have to also.)
As for the Kelo brouhaha – don’t get me wrong, I don’t think it’s necessarily a bad thing to have a public debate about the practice of eminent domain and when it’s appropriate, and what due process and just compensation is fair. Most of the public has no idea what that term means, much less when it’s used and what it could mean for them (especially if they live in oh, say, the development track for the new O’Hare runway expansion). I think the courts are all over the map on this – witness what happened in Michigan after Poletown. On the other hand, that may be an example of the system correcting itself, as the Michigan Supreme Court eventually overturned it as a radical departure from fundamental constitutional principles. (Too bad about the church though.)
(In full disclosure, my grandmother lost her house to I-465 development, and I think she got peanuts if anything for it. Half my family history went with it.)
It’s true that the Kelo case wasn’t a big departure from prior practice, but a couple of things about it are troublesome. The key issue was that the condemnation wasn’t clearly for a ‘public use’, and as a corollary, the local government’s motivation was partially to increase the tax base.
So, for example, the county could condemn your cozy little beachfront bungalow (possibly one that’s been in your family for generations) and then sell it to a wealthy investor/developer for highrise condos. The only public benefit is the increase in tax base. The general requirement that condemnation powers can only be for a public use is seriously undermined in this fact situation.
Another example — an individual or organization might purchase a couple of hundred acres of forest land in a developing area to help maintain green space, and then put the land in classified forest. This results in a low property tax rate under state law. The local government might be unhappy, and condemn the forestland and then transfer to a livestock producer who needs a large tract of land to build a CAFO, so that setback rules can be observed. Once again, the sole public benefit is an increase in property taxes.
A disturbing part of these scenarios is that the government is interfering in the real estate market. In the ‘cozy beach bungalow’ case, one would suppose that the owners would likely sell if the price offered was enough, but the final say-so is in the property’s owners. The private or ngo owned forest preserve is even more disturbing because there’s no way natural areas preservation can compete with commercial applications. Unfortunately, it’s not unusual for local governmental units to resent the tax breaks granted to classified forest (for example) and because there are no homes in the forested areas, there wouldn’t be any protection.
If one reads Kelo narrowly — that the condemnation must be part of an integrated plan — then it’s not too alarming. But if it’s read to allow local governments to act as a kind super-realtor, then it can and probably will work some mischief.
Back to the original column… perhaps the premis should have been “When is it ethical to take *one* person’s property?”
Doug: “The government takes our private property in the form of taxes every day when it takes sales taxes…”
Brenda: If eminent domain is a tax, it is a perceivably inequitable tax.
Is it the taking of real property vs. personal property that sets people afire (actually, from some of the comments, I see that that *is* a factor), or is it the taking from person X when you aren’t taking from everyone else?
Under the law, a taking only occurs when the government takes substantially all your property. Taking all your property is fundamentally different from giving up your property in taxes.
If you don’t like your taxes you are free to work the process and elect people who will take less or even none. Near me there is a town that voted to disincorporate itself to eliminate town taxes.