On March 13, Connecticut Superior Court Judge Thomas J. Corradino fired a shot across the bow of local government officials who've become accustomed to treating deeds to private property as playing cards to be snatched in a real-life game of "Go Fish." While the judge's decision didn't curtail increasingly common seizures of private property, it served notice that such land-grabs won't come without a fight.
While they have all of the appearance of outright theft, public takings of private property are allowed under the doctrine of eminent domain. In limiting the practice, the Fifth Amendment to the U.S. Constitution says only, "nor shall private property be taken for public use without just compensation."
"Public use" is generally understood to mean that when homeowners and business people discover that their property is being taken without their consent, it's for purposes that, allegedly, can't be satisfied in any other way — roads, for instance. The government cuts a check and takes the land so that a new highway can run straight from Point A to Point B without having to curve around holdout parcels.
That's not always the way it works, of course. In Flagstaff, where I live, the city council was caught snatching downtown properties from the rightful owner because it wanted new office space. Owner Rusty Heil had actually offered the buildings to the city, but found a private buyer when officials dragged their feet on the deal. Suddenly energized, the city council "took up an ordinance July 3 condemning Heil's property, it declared the ordinance an emergency, read it twice and enacted it — all in the same meeting," according to the Arizona Daily Sun.
Leasing space or purchasing property from a willing buyer apparently never occurred to Flagstaff officials.
Matters get more complicated still when governments snatch property for uses that can be called "public" only through a stretch of the imagination.
In the case that drew Judge Corradino's attention, the city of New London assigned its power of eminent domain to the New London Development Corp. The land was to be seized and handed over to private businesses that would, officials hoped, offer the city more tax revenue than that extracted from the existing landowners.
Condemnations of property on behalf of wealthy, connected private parties have grown increasingly common. The Institute for Justice, which provided legal representation for the besieged property owners in New London, has tracked the practice in recent years. A report released by the Institute documents the worst abuses of eminent domain from 1998 through 2002. The examples in the report span the country, from a commercial building in Las Vegas, Nevada, grabbed to be used as a casino parking lot, to the condemnation of more than 1,700 buildings and the dislocation of more than 5,000 residents for a private commercial development in Riviera Beach, Florida.
The problem has reached as far as supposedly idyllic Hawaii. According to the Hawaii Reporter, after the Honolulu City Council voted to condemn the land of four small landowners for a megabucks hotel and restaurant development, state senators belatedly introduced a bill to rein-in government land-grabs.
Such stories understandably breed sympathy among the public, as well as concerns about officials who wield the power of the state to enrich their friends. But tales of abusive land grabs aren't just tearjerkers — they're grounds for serious concern. Strong property rights are a key foundation for a free and prosperous society; they provide a barricade behind which citizens can shield themselves from government power.
Writing in Commentary in 1999, Prof. Richard Pipes of Harvard University discussed the historical connection between property and freedom. He made the point that "unless the greatest care is exercised in protecting the rights to property, we may well end up with a regime that, without being tyrannical in the customary sense of the word, is nevertheless unfree." He added that, "in addition to being the most important engine of liberties, acquiring property is the universal engine of prosperity."
That sentiment isn't just an American conceit. In his book, "The Mystery of Capital," the Peruvian economist Hernando de Soto sought to find out why some countries prosper, while other nations, with similar resources and educated populaces, flounder. Of countries that fail to achieve their potential, he wrote: "What they have not done is craft a formal legal system that recognizes those multitudes' property rights and lets them create capital."
So battling the abusive use of eminent domain isn't just a matter of stamping out isolated injustices; it has serious implications for society at large.
To combat the national epidemic of eminent domain abuses, the Institute for Justice recently formed the Castle Coalition to provide property owners the resources they need to battle seizures of homes and businesses. Among other helpful hints, The coalition's Web site instructs property owners on how to file freedom of information requests about proposed land seizures and where to find state laws governing the use of eminent domain. If an abusive land grab is underway, property owners are instructed in how to find sympathetic attorneys.
The homeowners and small business people who follow the coalition's advice will likely be more concerned about their personal struggles than about the larger impact of their fight. But in winning battles like that in New London, Connecticut, they're protecting not just their property rights, but also everyone's freedom and prosperity.
— Arizona Daily Sun