Taking Liberties

The fight over eminent domain could leave some wondering what happened to the neighborhood

| August 3, 2006

In 2005, the Supreme Court backed the right of New London, Connecticut, to force the condemnation and sale of seven homes in order to make room for a 100-acre Pfizer pharmaceutical manufacturing plant. By siding with big business over longtime residents, the ruling in Kelo v. New London inspired a widespread backlash against eminent domain; even staunch advocates of developing the public sphere came to question the decision's legitimacy.

Despite the media storm engendered by the case, few are aware of a campaign to subvert land-use regulations by piggy-backing on eminent domain's recent bad press. In High Country News, Ray Ring investigates the libertarian effort to minimize government control over private property, beginning with a look at ground-level campaigner Eric Dondero. An 'immediately likable' guy, Dondero gathers signatures full time for a petition he tells locals will 'keep that new eminent domain law from coming to Montana and taking our homes away.' That Dondero actually lives in Texas is beside the point.

Ring argues that despite public outcry over the Kelo case, eminent domain is more frequently used in positive ways. 'Governments at all levels invoke eminent domain on occasion to condemn property and force the owners to accept a buyout to make room for new roads, electricity lines, urban renewal, and other projects that benefit the public,' he writes.

The practical implications of Dondero's petition go far beyond restricting eminent domain. For decades libertarian property-rights advocates have been pushing legislation that would force the government to reimburse citizens for 'regulatory takings' -- hypothetical losses resulting from development limits and regulations like zoning. They claim that such regulations reduce property value, thereby violating the Fifth Amendment injunction against taking private property for public use 'without just compensation.' But, Ring argues, supporters of the cause don't actually expect to be compensated for regulatory takings; they expect that given the choice between a payout and waiving regulations, the government will choose to waive, allowing land owners to develop however they see fit.

Libertarians succeeded in persuading Oregon voters to pass regulatory takings legislation in 2004. Now all kinds of changes are in the works, from bigger billboards in Portland to a lily farm going trailer park, much to the dismay of its neighbors. Supporters of the measure are looking to export similar laws to six other Western states: Montana, Idaho, Washington, Arizona, Nevada, and California. Ring writes that the campaign is organized and well funded, but thus far has remained under the radar enough to prevent the formation of an oppositional front. -- Suzanne Lindgren

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