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Our general assembly is wrestling with the eminent
domain
powers of local government after a federal
Supreme Court ruling last year in the case of Kelo vs. the
City of New London, Conn. The city wanted to condemn the
Kelo home so the property could be sold to a hotel
developer.
State courts upheld the city, and so did the federal
courts. The Fifth Amendment to the federal constitution
states that nor shall private property be taken for
public use, without just compensation.
Compensation was not at issue. The question was whether
it was a public use
to take property from one
private party to sell it to another to further some public
plan resembling urban renewal. The federal courts basically
held that it was up to the state of Connecticut, not a
federal court, to determine what was a public
use.
Deference to state authority in these matters goes clear
back to the compromises that resulted in the federal
constitution. It was left to the states to determine what
was private property.
Back then, you could own other
human beings in South Carolina, but not in Massachusetts.
It took a long and bloody war to change that definition of
private property.
But differences remain today. Water rights are valuable
property in Colorado, but they're unknown in humid places.
A river's bed can be private property in Colorado, but it's
a public right-of-way in Texas. So even before we get to
the problems of defining public use,
we have wide
variance as to what constitutes private
property.
After all, in a state of nature,
you could really
own only what you could carry on your back and defend. Any
property beyond that depends on some degree of government:
courthouses to record property boundaries, sheriffs to
apprehend trespassers, servile senators and reprsentatives
to extend the copyright period, courts and prisons to
convict and punish thieves, etc. There is nothing
inherently natural
about private property; it's a
matter of social definition.
As for public use,
it's easy to understand the
logic of We're going to condemn your ma-and-pa muffler
shop so we can sell the parcel to a big-box store which
will pay more sales taxes, thereby reducing the tax burden
on the majority of the community.
It's understandable, just as understandable and wrong as the impulse to burglary. It implies an obligation by every property owner to put money first, when many of us believe that old-fashioned ma-and-pa cordiality makes for a better community.
In the Kelo ruling, the Supreme Court essentially encouraged states, if they didn't like the ruling, to limit the condemnation powers of local governments and related urban-renewal authorities. That's what our legislature is pondering now.
Basically, it makes sense to insure that a public
use
is actually something the public uses, like a park
or road or library, rather than some broader public
purpose,
which can cover almost as many governmental
evils as national security
or inherent war-time
powers.
But there's another angle to this. Salida has two
stoplights. One's out on the highway in front of Wal-Mart,
and it's relatively recent. The real town stoplight
is at the corner of First and F streets in the center of
our downtown. The buildings at three corners of the
intersection have businesses.
The other edifice, known variously as the Penny
Pincher
or Stoplight Mercantile
or A.T. Henry
Building,
is empty, and has been for years. The
downtown merchants would love to see a retail tenant there.
After all, the more shopping, the more potential trade. And
at such a prominent intersection, the empty Henry Building
gives the place a ghost-town look that discourages
visitors.
But the owners of the building just sit on it. They don't rent it and they won't sell it. Salida isn't the only town with that kind of problem building. My Saguache friends talk about the shuttered Saguache Hotel in the same way -- how are they supposed to get anything going on Fourth Street, the town's main drag, when its principal structure is sitting empty?
In Salida, there's been talk of somehow persuading the
city to threaten to condemn the building in the hope that
the owner might respond by doing what good capitalists do,
and get some income from the building. There's also been
talk of looking into a vacancy tax
in the commercial
district, to encourage landlords to put their property to
work.
This isn't the talk of socialists. It's coming from hard-working entrepreneurs, the small businesses who are in theory the heart of American capitalism. It can be reasonably argued that the prominent empty building costs them money.
Is there some way to solve these problems without giving local government power it can easily abuse? I haven't been able to think of one, but perhaps there are wiser heads in the legislature.
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