The Great National Land Grab

[Phaedrus]

By Peyton Knight
Enter Stage Right

Land grabbers in Congress, led by Rep. Joel Hefley (R-CO), want to pass federal legislation (H.R. 1427) to create a National Heritage Areas program. Property rights advocates must be on the alert and prepared to fight to ensure that such a program never comes into existence.

National Heritage Areas present many dangers to traditional property rights and local zoning. Here are a few of the more serious implications and problems associated with an NHA program:

National Heritage Areas are de facto federal zoning. Despite proponents’ claims to the contrary, as federal dollars flow from Washington to individual NHAs, inevitably, federal strings are attached. One of these strings is federal zoning mandates. For example, when the Augusta Canal NHA was undergoing initial approval, the National Park Service urged the House Resources Committee to withhold federal funds from Augusta Canal until a commitment was shown by those overseeing the creation of the NHA to implement stricter zoning laws and even create a State park. Land use and zoning is an inherent function of local government. NHAs promote a top-down, federal approach to land use that would spell disaster for local communities.

National Heritage Areas stifle local initiative and control. When born of local initiative, planning and money, Heritage Areas are more apt to have the consensus of the property and business owners within their boundaries. Indeed, there are many State Heritage Areas that are totally sustained by local businesses and governments—they operate free of federal money or intrusion. National Heritage Areas operate quite differently. It is not necessarily the desire of the local community to create a NHA in their area, but rather the desire of a special interest group or a federal agency. Preliminary boundaries are drawn, locals are inadequately informed of the pending NHA designation, federal money and assistance is wafted under the noses of local officials, and the process goes forward, despite what is in the best interest or desire of the community.

Property owners are not properly notified when their land falls within the boundaries of a proposed National Heritage Area. It is morally imperative that landowners be notified any time a federal designation could affect their property rights in any manner. Yet proponents of National Heritage Areas refuse to offer this most common courtesy. This is because they fear opposition to NHA designations and would rather spring the news on unsuspecting landowners.

National Heritage Areas not only promote federal land acquisition, but also acquire land themselves. Both the Cane River and Shenandoah National Battlefields National Heritage Areas are authorized to use federal funds for land acquisition, and thus, have created national parks within their boundaries. Others, such as the Rivers of Steel NHA in Pennsylvania, are openly lobbying for land acquisition and park creation. Property owners within these NHAs must now contend with ideologically driven land trusts partnered with federal agencies hungry to either acquire their land or restrict its use.

A National Heritage Areas program would grow exponentially and become a massive funding burden to the federal government. A National Heritage Areas program could not come at a worse time. Once a National Heritage Area program is established, local government officials and non-governmental organizations will clamor for more and more federal dollars. As the program grows out of control, so too will its strain on the federal budget and its burden on a National Park Service that is already facing a multi-billion dollar maintenance backlog.
The National Heritage Areas program is an expensive, insidious attempt by non-governmental organizations and federal agencies to impose land use controls and zoning mandates on unsuspecting local communities. It is my view, and the view of others in the property rights community, that there is zero justification for such a program at the federal level. The Senate Resources Committee has a golden opportunity to quash this dangerous program before it spreads like wildfire throughout the nation, devouring local communities.

********

Phaedrus adds: Is anyone aware of any state, county or municipal government which does not have eminent domain laws, or which even specifically guard/guarantee against them? Have been trying to find out if this is a truly unanimous concept or not, but all resources are short on statistic, long on rhetoric.

 

[Oceans11]

I recall the socialist lefty tree hugging commies in the UK stopped a compulsory land purchase by Government by dividing the target land into thousands of square inches, and raising a legal title deed on each square inch.
These were then distributed all around the world to various supporters at a buck each.

The cost and time needed to serve a compulsory purchase order, on each and every title deed holder was too great, and the compulsory purchase was abandoned.

 

[Phaedrus]

eek

That is hilarious! Do you know of any documentation online I could cite? There is a discussion of eminent domain policies and how to combat them going on at another forum and I would love to put that up.

In America the eminent domain clause is being abused at a rate and scope that is unbelieveable. Up until recently I thought that eminent domain was largely a matter of government taking land for government purposes, such as roads, irrigation, etc. But there are many examples of property owners being forced out of their property just for the sheer dollars and cents of it, as in this high-profile case in Alabama, where property owners are being forced to sell to build a shopping center -- audaciously enough, the city even has the balls to say that the whole reason for doing so is to run up property values and increase tax revenues (for the (ahem) greater good of course. Taxes help us all. Or something.)

There is a similar case in Daytona Beach, where the government feels that a business run by a local family for more than forty years in the same location should be forced to sell for the "greater public good" that will come from a redevelopment of the Boardwalk area.

A lot of proponents of eminent domain law will say that property owners are "justly compensated" for their stolen property, but this is nonsense. For one thing, if you own a property and do not wish to sell it, it is immoral for someone to force you to do so. But for another I know of numerous examples from my own area that contradict this "fair value" assertion, or at least stand as a stark exception.

A friend of my family was forced to sell land in the Florida Keys that was worth hundreds of thousands of dollars for less than $ 10,000.00 when the island on which his property was located was suddenly declared a "wildlife habitat."

Untold residents of Alabama have been forced from their homes and paid scant amounts for their property to make way for two Byzantine projects: the damming of the Chatahoochee River (and creation of our oh so popular Lake Eufaula and it's corresponding multi-million dollar tourist industry) and the four-laning of US Highway 431, one of the most bizarre road projects in human history. It was begun when my mother was in high school (class of 1964.) When I was in high school they were "almost finished" (class of 1989.) At the moment they are really, seriously, just about to wrap it up.

It's a strange thing, forcing people from their homes in order to make their town a happier place for them by tearing down their house and putting a road where it used to be. Very strange indeed.


Phaedrus

 

[BigGamesOnly]

I understand the need for emininent domain but I thought the US Constitution states that this country is "by the people, of the people and for the people". If this is true, why does the government own such a large percentage of land?

Phaedrus, I always enjoy reading your posts.

 

[Phaedrus]

eek

Do you have any source on that story? I would love to cite it, as the argument is still warm at the other forum I mentioned.


Phaedrus

 

[Oceans11]

I cant find anything P, and I had a good look about too.

It was in the 80's, in England, and one of those baby eating tree hugging lefty organisations did it.
(That's all I can remember for the engine search

)
They used a computer printout program to create the new deeds that were sent out.

But I cant find anything at all now, not even a snippet.

If I run into it I'll post it up.

 

[Phaedrus]

Some anti-eminent domain resources I have found:

Institute for Justice

Castle Coalition


Phaedrus

 

[PatPatriot]

During the Billary Clinton admin. He/She signed off on the federal confisication of more land than anytime in US history.

 

[BigGamesOnly]

Pat:

Wasn't that especially true in the last days of his/her administration?

 

[Phaedrus]

BGO

Clinton took over millions of acres of land using the Antiquities Act of 1906, in his last year of office. The Land Rights Association has been fighting the move ever since, but unfortunately the Supreme Court just rejected the appeals from them day before yesterday (story here.)


Phaedrus

 

[BigGamesOnly]

I thought the US Constitution set up 3 equal branches- the legislative, executive and judicial. Pardon my ignorance but when has the last time the legislative or executive branch ever trumped a decision by the Supreme Court?

I think most people think of our system as having the judicial branch above the other two with the legislative and executive sometimes over-riding each other.

 

[Phaedrus]

BGO

The legislative and executive branches do not neccessarily have to follow the dicta of the judiciary ... they generally do, but I'm sure there are plenty of examples when they have not. Also, subsequent reviews by the Supreme Court can overrule previous decisions from them.

I am far more concerned with such *additions* to the fedral powers as the executive order (another fine advent of our good friend Abraham Lincoln) and of endless cabinet-level bureacracies which were created in the 20th century (and our first new one of the 21st, of course.)


Phaedrus

 

[Phaedrus]

An even more egregiously offensive example ... where a government, rather than taking land by force, squats on it and dictates terms of a lease to the property owner ...

<BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>
County to landowner: You will rent to us

Judge orders lease extended despite government's refusal to meet terms


Citing eminent-domain laws, an Arizona court has forced a landowner to continue renting space to Maricopa County even though the municipal government failed to agree to terms to extend the lease.

Orsett/Columbia Ltd., the owner of a strip mall in West Valley, Ariz., has been leasing space to the county for the Peoria Justice Court since 1989, reported the Arizona Republic. The lease expired in July, and the landowner wanted a five-year lease extension. The government, however, only wants the space for two more years and took the issue to court to force the company to comply with the county's demand.

"This means municipalities can identify a space they want and force a landlord to lease it to them," Mike Freret vice president of development for Orsett/Columbia Ltd., told the paper. "It may mean that if the space they want already has a business owner in it, they could boot them out."

Tom Irvine, who represents the county, said it is no different than the Arizona Department of Transportation leasing private land along roads during widening projects. The 5,500 square-foot space in Columbia Square Center is only a part of the total property.

According to the report, the Orsett officials would agree only to a five-year lease, saying a dance studio was willing to pay for the space for that long. The county, however, is planning to move the courts to a new building in just 18 months.

"We think the statute and the Constitution allow governments to rent, but governments can only take what they need," Irvine told the Republic. "We only needed it for a couple of years, and the court didn't want to waste three years of taxpayer money."

Orsett called it "involuntary servitude," the report said, arguing that eminent domain does not allow governments to force a private company to enter into an involuntary commercial lease.

In July, Judge William J. O'Neil of Pinal County Superior Court gave the county a two-year lease, stating the space was for a public use and was necessary for the court to continue operation.

"What the lower court said via these actions was that municipalities can create new contracts where none existed before," Freret is quoted by the paper as saying. "That's way beyond the premise of what the eminent domain statutes were set up for."

Clint Bolick is vice president of the Institute for Justice in Washington, D.C., a group monitoring the case.

"Using eminent domain to compel a property owner to rent to government seems tyrannical," Bolick told the paper.

Orsett/Columbia Ltd. is waiting for a ruling by the state Court of Appeals, which it hopes will overtrun O'Neil's decision.
<HR></BLOCKQUOTE>


Phaedrus

 

[Phaedrus]

My Home is Gone, But We Have a New Mall

By Joyce Morrison
The Illinois leader

Eminent domain is being awarded to development groups across the nation along with a wink by legislators when eminent domain and quick take powers are given to authorities to be used for economic gain.

The definition of eminent domain quick take powers was quoted in the Champaign News Gazette:]

"Quick take power allows the government to seize the land first, so it can start construction while the courts determine how much the owner should be compensated."

Southwestern Illinois Development Authority (SWIDA) has quick take powers and abused them a couple of years ago when they wanted to take property from one business owner and give it to another business. The judicial system worked that time.

Taking the property from one business to give to another was not permitted by the Illinois Supreme Court. SWIDA had quick take powers restored, but the governor used an amendatory veto that quick take can only be used by SWIDA with the approval of Illinois Department of Transportation. Some would say in some cases this is the fox watching the hen house.

As long as it is not our property that is the target, we ask ourselves, "Can we have too many Wal-Mart stores and malls?"

The real problem comes at the very root of the situation. The right to the protection of being a property owner and why we must protect private property.

For the rich and the poor to both have the opportunity to be property owners has set the United States apart from other nations. A poor person can buy property in the U.S. He can then mortgage that property and use the collateral to start a small business.

The American dream would be for that small business to grow into a J.C. Penneys or Kraft foods or Kentucky Fried Chicken - these dreams are achievable because an individual - rich or poor - can begin by being a property holder.

The Constitution was specific in the areas that condemnation of property should be used sparingly with the intention it be used for public use such as military bases, highways, bridges, prisons, and courts and the owner would be paid "just compensation." Owners of property felt safe to live in their homes and on their farms for generations. Rights and privileges went with ownership of private property.

But that is true no more. We have changed the rules.

What is "just compensation?"

If a person does not want to move, there would be no amount of compensation that would be "just." If someone owns property hoping to sell it for development in the future and then use the investment for their retirement, do they want to lose it to condemnation at what they are being told is fair market price today?

It now appears that large stores and malls are considered "for public use" and supersede the rights of the elderly, the ill, the poor and all property owners and their right to stay in their homes as provided by the Constitution.

Many of these people could never afford to fight a court battle against the giants so they lose their homes and have to find affordable housing elsewhere. At the "just compensation" of fair market value, there is often no housing available in their price range, so where will they go?

"Going for Grandma’s House," an article by Michael W. Lynch gives case after case of eminent domain being used to "boot" grandma from her home for economic development purposes.

The Christian Science Monitor reported over 10,000 pieces of property have been seized by cities for private developers. Reporting from the Institute for Justice report, some are the abuses are:

# In Atlantic City, an entire black middle-class neighborhood was condemned and destroyed to make way for a tunnel to a new casino that was never built.
# Bremerton, Washington removed a woman in her 80s from her home of 55 years for the claimed purpose of expanding a sewer plant, but gave her former home to an auto dealership.
# West Palm Beach in Florida condemned a family’s home so that the manager of a planned new golf course could live in it.

The Institute for Justice reported that between 1998 and 2000 the four states leading in combination benefiting private parties was Maryland with 1,237 cases, California with 858, Ohio 421, and Michigan with 311.

Articles from World Net Daily told of Alabaster, Alabama, a city of 24,000 who had a city council that wanted more money to spend. More revenue would have come from sales tax from the building of a major retail shopping center than from the property taxes of the residents, so guess what they decided to do?

The city council voted to use eminent domain if some landowners refused to sell their property.

Homeowners were told by city officials that if they didn't accept offers from land brokers, what the city would offer would be much less because under state law the city can only pay fair market value for their property.

"The developer's offer was substantially lower than the fair market value, and the city offer is considerably lower." said Jim Pino, a Pelham lawyer who represents six of the property owners.

The city's attempt to redevelop the area near the interstate is an effort "to steal from the poor and give to the rich," property owner Mattie Taylor said.

"Sometimes the good of the many has to outweigh the greed of the few," said one councilman.

It would appear this councilman's concept of greed is a bit twisted. It would be interesting if that councilman’s home was one of the targeted "steals" of the day.

TIF (Tax Increment Funding) and Eminent Domain have joined forces. TIF was supposedly meant to restore blighted areas but with the abuse of TIF districts that is not always the case. Using eminent domain in some of these areas will most assuredly be an attack on the poor.

As we see this abuse happening in our own communities, we need to support those whose homes have been targeted for economic gain. Our elected officials need to understand we intend for them to follow the Constitution and to protect the rights of those they represent.

 

[Phaedrus]

Family Accuses State of Allowing Unfair Auction of its Former Land

(Associated Press/Boston.com)

STURBRIDGE, Mass. -- A local family whose farmland was seized by eminent domain in 1952 for $1 is criticizing the state's plans to auction the land for more than $300,000.

Ginger Rousseau, the great-great-niece of the farm's former owner, Eunice Hubbell, said the 6.46-acre parcel was never used for a public purpose, the Telegram & Gazette of Worcester reported Friday.

"It seems ludicrous the state can take your land, not use it, then turn around and sell it for a huge profit," Rousseau said. "People don't believe this happens, but it does. This is what is going on."

She said a notice of the pending sale was not published in the Environmental Monitor until March 24, a week before a public hearing.

In response to letters written by the family, Romney and Lt. Gov. Kerry Healy said they would look into the matter and concluded there was nothing they could do because of the law, Rousseau said.

The newspaper reported calls placed to the governor's office were not returned.

Rousseau's parents, Edith A. and Samuel R. Puckett, lived on the chicken farm that was located next to the property, due to be auctioned on April 14 in Newton.

A document prepared on Dec. 23, 1952 by the state Department of Public Works, a predecessor of the Massachusetts Highway Department, said the land was claimed for a $1 "for the purpose of laying out, constructing and maintaining" the eventual Interstate 84.

"The state never laid a foot on that particular piece of land, which has been in the family over 100 years. This is eminently atrocious," said Edith Puckett, Hubbell's great-niece.

Kevin P. Flanigan, deputy director of the Division of Capital Asset Management, said the auction was "a matter of state law."

In the public hearing on Tuesday, Roberta Brien, project manager for the division, said Romney had ordered it to sell the stagnant property.

"We have a mandate by our new governor to proceed with the sale of stagnant property. We have a huge budget deficit. The governor is looking at selling property to close the budget gap. Six contiguous acres is rare in Massachusetts. It is a fair, open, announced process," Brien said.

State Rep. Reed V. Hillman, R-Sturbridge, and State Sen. Stephen M. Brewer, D-Barre, are drafting a bill that would allow the family to reclaim the parcel, in exchange for another 28-acre tract the family says it cannot access because the interstate bisects the property. If Romney signs the legislation prior to the auction, it would be the only way to prevent the sale, Brien said.

"The 6.46-acre taking was improper because the state did not pay full and fair compensation, although Mass. Highway says they took it as a matter of course for $1," Hillman said.

A state Highway Department spokeswoman said the agency would research whether the state used the land. She could not confirm on Thursday if the 6.46-acre parcel was needed for the road project.

Officials could not confirm when law changed requiring the state to pay fair market value for land acquired through eminent domain.

To receive more than $1, the property owner had to petition the state in court, which Hubbell did not do, Rousseau said. Hubbell died of acute lymphocytic leukemia in 1954, two years after the land purchase.

 

[xpanda]

Phaedrus: If you haven't already stumbled upon it, there's also this.

 

[Phaedrus]

Yep, seventh post in the thread, 08/10/03, along with Institute for Justice and the Land Rights Organisation.


Phaedrus

 

[Phaedrus]

And sometimes the news is good ...

The Colorado state legislature has made progress on a bill which sharply limits the abilities of county and municipal governments to force residents and absente owners to give up their land ... God bless Rep. Bill Cadman (R-Colorado Springs) who puts it quite succinctly:

<BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>
If they can't afford to buy it, they shouldn't be able to steal it from you through the courts ...
<HR></BLOCKQUOTE>

Story from the Denver Post is here.

The Michigan Supreme Court has agreed to revisit a 1981 case which allowed an entire Detroit neighbourhood to be forcibly cleared to make way for a General Motors plant, as a part of a more recent lawsuit filed by Wayne County against property holders who refuse to sell their land so that the county can build a new airport. (story here.)


Phaedrus

 

[Phaedrus]

A potentially historic ruling in Michigan ... I say *potentially* historic, because who knows how long it will last. Especially telling are the remarks by the statist apologist human crosshairs interviewed by Freep:

<BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>
Poletown seizures are ruled unlawful

State Supreme Court restricts government rights to take land

by John Gallagher
The Detroit Free Press

Reversing more than two decades of land-use law, the Michigan Supreme Court late Friday overturned its own landmark 1981 Poletown decision and sharply restricted governments such as Detroit and Wayne County from seizing private land to give to other private users.

The unanimous decision is a decisive victory for property owners who object to the government seizing their land, only to give it to another private owner to build stadiums, theaters, factories, housing subdivisions and other economic development projects the government deems worthwhile.

Detroit and other municipalities have used the Poletown standard for years to justify land seizures as a way to revitalize.

In the decision, the court rejected Wayne County's attempt to seize private land south of Metro Airport for its proposed Pinnacle Aeropark high-technology park. The Pinnacle project, announced in 1999, is geared to making Wayne County a hub of international high-tech development linked to the airport.

Backers of the Poletown standard warned that Friday's decision could be a "significant blow" to revitalization efforts in blighted cities like Detroit. John Mogk, a professor of land-use law at Wayne State University, said Detroit needs to use its powers, known as eminent domain, to seize land to clear large tracts for new economic development, including retail centers, office parks and residential projects.

"Any limitation on the power of eminent domain will reduce the chances of the city accomplishing those kind of projects," Mogk said. "No other city with which Detroit competes has such limitations placed upon its ability to acquire tracts of land for future development."

In the original Poletown ruling, the court allowed the City of Detroit to seize private homes and businesses on the east side so General Motors Corp. could build an auto factory. The bitterly contested seizures and the court's ruling in favor of the city had national implications and led to similar rulings elsewhere.

Thousands of homes and dozens of churches and private businesses were bulldozed in Detroit's former Poletown neighborhood to make way for the GM plant.

Of 1,300 acres needed for Wayne County's Pinnacle project, property owners representing about 2 percent of the land have refused to sell. They have resisted, in part because much of the project would later be turned over to private developers and other entities.

In Friday's decision, known as Wayne County v. Hathcock after one of the landowners in the case, the court ruled that the sweeping powers to seize private land granted in the 1981 Poletown case violated the state's 1963 constitution.

"The county is without constitutional authority to condemn the properties," the court's opinion read. All seven justices voted to overturn Poletown, although three dissented over some technical aspects that do not affect the main ruling.

Justice Robert Young, who wrote the lead opinion, called the 1981 case allowing Detroit's Poletown neighborhood to be cleared for a GM plant a "radical departure from fundamental constitutional principles."

"We overrule Poletown," Young wrote, "in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

Alan Ackerman, one of the attorneys who represented landowners in the case, said he was "elated at the recognition that it is a government of limited powers. The constitution did not contemplate that the government would do everything for everybody."

But a spokesman for Wayne County Executive Robert Ficano issued a statement saying that "the Michigan Supreme Court's decision to change Michigan law and divest municipalities from their ability to create jobs for their citizens is a disappointment not only for Wayne County, but for all of the Michigan communities struggling to address these difficult economic times."

The court said its ruling covers any condemnation cases now being heard before lower courts in which Poletown issues have been raised. The former owners of Poletown properties that were seized to clear land for the GM plant are not affected by the decision.

The decision won't stop all uses of eminent domain. All sides agreed governments can still take private land for traditional uses such as slum clearance or for a private use deemed essential to the public good, such as to build a regulated public utility. And the government's ability to seize land for governmental purposes such as building schools and roads was never in question.

What the decision does mean is that the cost of land just went up for municipalities trying to accomplish economic development. Now that governments can no longer use the threat of seizure, private owners and speculators could demand higher prices to get out of the way of projects that government leaders deem essential.
<HR></BLOCKQUOTE>

(emphasis added)

For those unfamiliar, the so-called "Poletown ruling" is a significant event in recent eminent domain history, as it set the standard for land seizure by the state and subsequent redistribution to private parties, versus prior eminent domain seizures which focused largely on the "public good" as manifested in freeway off-ramps, state-owned infrastructure etc. Turning it over in Michigan could have positive effects in other states, if those fighting eminent domain seizure (which effects thousands of properties per year in the U.S.) pick up on the Michigan Supreme Court's move.


Phaedrus

 

[Marco]

60 Minutes had an episode a while back with cases about like these....basically these laws are in the same league as the Patriot Act....