Voters Ride The Property Rights Roller Coaster

Los Angeles Daily Journal

Property rights. It’s the issue of the day – every day. It is hard to pick up a newspaper without being confronted with property rights stories. They cover the country. From the East Coast, we get stories about the still smoldering aftermath of Kelo v. City of New London, 125 S. Ct 2655 (2005) from the ground zero of that case. It seems that the city decided to commemorate the one-year birthday of its famous (or infamous, depending on your point of view) victory in the U.S. Supreme Court by resolving to forcibly evict the remaining home owners. (Elizabeth Mehren, “One Step Closer to Eviction,” Los Angeles Times, June 7, 2006.)

From the West Coast comes the tale of police officers physically evicting a group of “urban farmers” – and some of their celebrity supporters – from an industrial area in south Los Angeles, which they had occupied (rent and otherwise cost-free) for more than a decade. (Steve Lopez, “Daryl Hannah Evicted From Tree on Urban Farm,” Los Angeles Times, June 14, 2006.)

A West Coast bonus (as this is a West Coast newspaper) includes the impending scrap between the federal government and local neighbors and governmental groups. It seems the Feds discovered that they own a very valuable piece of Westside Los Angeles property at the corner of Wilshire and Federal. The 10-acre site is now being used as an army reserve center. Someone thought that the reservists could be relocated and the property sold for a substantially more valuable use. Not every one is charmed by the idea. (Martha Groves, “County Seeks to Block Army Auction of Site,” Los Angeles Times, May 31, 2006.)

From the Gulf Coast, the stories focus on the continuing remains of Hurricane Katrina involving, for example, hotly disputed efforts to use eminent domain to clear out the remains of the largely African-American lower Ninth Ward for some sort of redevelopment. (Emily Chamlee-Wright & Daniel Rothschild, “Government Dines on Katrina Leftovers,” Wall Street Journal, June 15, 2006.)

The stories raise fundamental questions, including each of the following: What are property rights? Whose rights are we talking about? And, if they are really “rights,” how are they protected (for, surely, nothing can rightly be called a “right” if the law does not protect it)?

The Army story has its own fascination. The property owner is the government. Not only that, the property owner is a governmental body that has no qualms about telling private property owners what they can (and more to the point, cannot) do with their land. As so often happens when the shoe is on the other foot, the government (as property owner) wants the right to exercise general rights of property ownership. Whether the locals will be able to stop it – in order to protect the rights of others in the vicinity – remains to be seen.

The “urban farmers” story had sufficient legs to keep it at the top of the news for quite a while. The property was located in a poor neighborhood. It had originally been condemned by the City of Los Angeles as the site for a new trash incinerator. However, proponents of “economic justice” (i.e., opponents of putting all the unpleasant land uses in lower socio-economic neighborhoods) eventually prevailed, and this industrial property was not put to that municipal industrial use. As it then had no plans, the city allowed the land temporarily to be farmed by people from the neighborhood. Then the former owner sued to recover the property. After all, it was forcefully wrenched from private ownership for a specific public use and that use would never be made. The court agreed. Eventually, he decided to reclaim possession. That’s when those who had squatted on his property protested that their rights were being infringed. And Joan Baez came to sing songs and Daryl Hannah lodged herself in a tree until plucked by the authorities.

But the biggest stories relate to government planning. Everything started to hit the public fan in a big way just about a year ago when the U.S. Supreme Court decided Kelo. Unless you’ve been on an extended Martian vacation, you know that Kelo upheld the condemnation of a neighborhood of unoffending middle-class New England homes whose only sin was that they didn’t produce much in the way of tax revenue. The firestorm of public outrage was truly legendary in proportion. Ordinary citizens, it seems, were wroth that nothing in the Constitution would protect them against having their homes seized to make way for someone else’s view of progress.

As the High Court simultaneously acknowledged that each state had the power to place greater restrictions on the exercise of eminent domain within its borders, legislation was introduced virtually everywhere in response to the public outcry. (Pending legislation is collected at the Castle Coalition website.) The legislation was introduced by politicians of all political stripes. No one, it seemed, wanted to be left off this bandwagon.

Intriguingly, given the flurry of legislative activity, precious little has been accomplished. To be sure, some legislation has been adopted in some states. Some of it is even likely to curb abusive exercises of eminent domain. But, in large measure, legislation that has been adopted has either been confusing or so watered down by political compromise as to be meaningless. Nothing has happened, for example, in California.

Eight months after Kelo, the Supreme Court of Oregon rang a different sort of alarm bell. In MacPherson v. Department of Administrative Services, 130 P.3d 308 (2006), that Court upheld a citizen initiative measure designed to protect landowners against well-intended, but overreaching, bureaucrats. Oregon has had a history of stringent land use controls. One of the primary engines of growth control was to establish urban limit lines around existing cities and mandating that all significant growth take place within those lines.

The problem with Oregon’s geographic growth limitation was that it enriched those within the lines and left those on the outside with their noses figuratively pressed against the glass wall looking in, but unable to participate. Eventually, that riled the citizenry to action. The Oregon experience is important, because it demonstrates what happens when politicians and well-meaning planners decide that they know what is best for the people and ignore significant harms that are reported to them and sweep them under the rug as isolated incidents. (E.g., Eric Kancler, “The Aftermath of Measure 37: Resisting the National Eminent Domain Backlash,” [May 30, 2006].)

The result was that the voters – even in a traditionally liberal bastion like Oregon – took matters into their own hands. They rebelled at the idea that those at the top could enact rules that enriched one group at the expense of another by requiring those outside the artificial urban limits to provide a pleasant green backdrop for residents of favored condos to look at from their balconies.

Oregon’s voters not only passed Measure 37 last year, they hit a political home run, amassing more than 60% of the vote. Measure 37 has hit the professional planners and others who feel they know what is best for everyone else very hard. A typical comment was that “Measure 37 takes an 81-year history of zoning and planning . . . and turns it on its head.” (Edward J. Sullivan & Carrie A. Richter, “A Taste of Ashes – The MacPherson Decision and the Future of Oregon’s Planning Program”, Planning [April 2006].)

What happened in Oregon is that the voters decided that, if the general community felt it would be benefited by maintaining properties outside the current urban boundaries in bucolic splendor forever, then the general community ought to pay the cost of that preservation. Alternatively, it could release the property from development restrictions and allow the owners to sell or develop it – just the same as those immediately on the other side of the line. Simple choices. Simple justice.

Which brings us back to Kelo, and the legislative responses. As noted earlier, the legislative process of give-and-take and compromise-and-confuse has resulted in little of substance. The confluence of these factors – Kelo, the successful Oregon initiative, legislative failure to enact meaningful reforms – has resulted in this summer’s perfect storm.

Voters in California (and a substantial number of other states) will have the opportunity to take matters into their own hands. Initiative petitions are circulating. At last report, the California sponsors had submitted twice the number of signatures required to qualify for the ballot. That measure combines the anti-Kelo sentiment about restricting the use of eminent domain to traditional public needs, like roads, schools and other public facilities, with the anti-regulatory stultification sentiment seen in Oregon’s successful initiative.

If you think its been a bumpy ride so far, buckle up. Its just getting started.



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