Guess what, your house is for sale whether you realize it or not. Every one of
you who has owned a home since the Supreme Court ruled against Susette Kelo last
year may be surprised to learn that not only is your home for sale, but the
government has its own Multiple Listing Service (the county assessor's tax
rolls). Since no private property is exempt, in essence, everyone's home is for
sale. The government may sell anyone's home, at any time, for any reason, so
long as the new owner will pay a higher property tax. This seemingly is the new
minimum threshold for eminent domain. Higher taxes is a higher "public purpose,"
says the court, as long as the government supposedly pays you "just
compensation" whenever a qualified buyer appears.
I can tell you about eminent domain from firsthand experience. In 1968 I was the
manager of a family-owned business in Pacific Beach near Interstate 5. Caltrans
was about to put the I-5 onramp through the building we were leasing and we had
been negotiating with Caltrans for six months for reimbursement of the
improvements and equipment.
Caltrans did not show up for the final meeting and terminated all discussions. I
contacted the right-of-way agent and asked why. He said I did not renew our
lease or exercise any options and therefore had no rights. But, but, but, I
mumbled, you've already demolished all the other buildings in the right-of-way,
why would I renew a lease for a building that would be torn down in 30 days?
Sorry! You no longer have any legal rights!
This was my first experience with eminent domain, which put my family out of
business. It's also the reason I'm in real estate and why I ran successfully for
City Council. I know the trauma of being condemned up close and personal. In
four years on the City Council, I never once voted for a condemnation, though I
believe the government does have a right to take property for freeways and a few
other legitimate public uses.
In June 2005 the U.S. Supreme Court, in Kelo v. New London, said the city
of New London could take Susette Kelo's home, even though it was not blighted.
A person's home may be their castle in England, but no longer in America. A
taking does not have to be for a public use as stipulated in the Fifth Amendment
to the Constitution, which states, "nor shall private property be taken for a
public use without just compensation." Today, the government can take anyone's
property and give it to someone else for the sole purpose of generating more
property taxes. Any home, business, store, hotel or church can be condemned and
sold for private development.
A $7.7 million cigar store was condemned in San Diego for a Marriott Hotel,
church land in Cypress has been condemned for a Costco and a tire shop in
Oakland so it wouldn't compete next door to Sears. (For the cigar store the city
said $3 million was "just compensation," but the court said $7.7 million. So
much for just compensation when the city determines the value.)
As a result of a Kelo decision backlash, 28 states have introduced legislation
to restrict the taking of private property for economic development. In
November, Californians will be able to vote for Proposition 90, which puts a
halt to eminent domain abuse and requires just compensation when a governmental
entity takes or diminishes the value of your property. Over 1 million
Californians signed petitions to place the Protect Our Homes Initiative on the
ballot. Polls show up to 93 percent of the public (89 percent of small
businesses) opposes condemning private property for economic development.
A similar law, Measure 37, was overwhelmingly approved in Oregon in 2004 and has
been upheld by the Oregon Supreme Court. Last month the Ohio Supreme Court ruled
unanimously that a city could not take private property in Ohio for economic
development "even though it would provide an economic benefit to the government
and the community, (which) standing alone, does not justify the taking of
property under the Ohio Constitution."
Eminent domain proponents claim it's necessary less than 3 percent of the time.
If property owners say yes 97 percent of the time without a gun to their head,
that's pretty persuasive that we can get along without it for the other 3
percent. The attorney general, to show his unstinting support for private
property, has given Proposition 90 the catchy title, "Government Acquisition,
Regulation of Private Property. Initiative Constitutional Amendment." Don't be
dismayed by the title.
Proposition 90, once enacted, goes into effect immediately and will apply to
every eminent domain case that has not been fully adjudicated. The Proposition
90 campaign is seeking endorsements from organizations throughout the state that
support property rights. The founding fathers understood that private property
is the fountainhead of all our rights, including freedoms of speech, press,
assembly and religion, and that without property rights no other rights are
possible.
"The right of property is the guardian of every other right," said Arthur Lee of
colonial Virginia. "To deprive a people of this is, in fact, to deprive them of
their liberty." Governments are formed for the protection of private property,
not the elimination of it (except in communist countries). While it may take a
Herculean effort, rest assured that we can win this campaign just as we won the
revolutionary Proposition 13 limiting property taxes in 1978.
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Schnaubelt, president of Citizens for
Private Property Rights, has been a commercial real estate
broker for 39
years and was a San Diego City Councilman from 1977-81.
This article appeared in
the San Diego Daily Transcript on Aug. 18, 2006.
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