The U.S. Supreme Court gave landowners a scare last year. In response, the Colorado state Legislature is moving to defend property rights. That is as it should be.
The state House of Representatives passed a bill to limit how local governments can exercise their power of eminent domain to seize private property. The state Senate and Gov. Bill Owens should likewise approve it.
House Bill 1411 raises the standard governments would have to meet in order to declare private land “blighted” and seize it. It also forbids the condemnation of private property for economic development or to increase a tax base.
That became a national issue last year when the U.S. Supreme Court ruled that there is nothing in the Constitution that bars local governments from taking private property — even when the purpose of the seizure was to transfer the property to another private party to boost economic activity.
That case — Kelo vs. City of New London — turned on the “takings clause” of the Fifth Amendment, which says “nor shall private property be taken for public use without just compensation.” That clause clearly envisions the need for the government to take private property sometimes, but just as clearly requires it to compensate the property owner for the loss.
What is not clear is the meaning of “public use.” That was the issue in the Kelo case.
Some public uses have long been recognized as legitimate applications of eminent domain. Without it, for example, it is doubtful the nation would have any urban freeways. But what the city of New London, Conn., had in mind was to take private property — including homes — in order to allow private developers to construct office buildings, upscale housing and other amenities such as a marina on 90 acres of waterfront property. The justification city officials offered was that the project would create hundreds of jobs and pump more than $600,000 of property tax revenue into city coffers.
The court deferred to state and local decision makers. The majority opinion, written by Justice John Paul Stevens, in essence said that neither New London nor Connecticut officials were out of line in construing economic development as a “public use.”
The case was a victory for city planners and developers looking to reinvigorate slums and decaying urban areas (and perhaps for investors seeking to build a proposed toll road on Colorado’s eastern plains). Property-rights defenders, though, were appalled.
Writing in dissent, Justice Sandra Day O’Connor said that the “specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Nothing, that is, except the voters and their elected representatives. In Kelo the court said that state and local officials may define economic development as “public use.” It did not say they must.
In restricting that definition, Colorado lawmakers are in step with their constituents. The prospect of losing a home for an overarching community need is bad enough. Having it taken so that someone else can make a buck is wrong. That part of that buck might end up as tax revenue is no excuse.
