The Fight for Stronger Property Rights

In November, 13 states decided either through ballot initiatives or legislation whether local governments must limit eminent domain (the right for a public agency to take land), pay property compensation, or both, according to a report in the May issue of Urban Land magazine. All but two of the efforts succeeded, and additional initiatives in Colorado, Missouri, Montana and Oklahoma failed to make the ballot in November.

The outcome of U.S. Supreme Court case Kelo vs. City of New London in June 2005 may have spurred voters and legislators to seek stronger property owners' rights. The Kelo decision found that a local government did not violate the "public use" section of the Fifth Amendment in condemning private property for a private-sector development. Critics said the decision was a blow to private property rights.

The article notes that passage of Oregon's controversial Measure 37 in 2004 is part of a broader property rights movement -- 23 states have pursued legislation or ballot measures to strengthen property rights. Measure 37 provides that if a property owner can prove that a land-use regulation restricts the use of the land and reduces its value, the government can "pay the owner of the property an amount equal to the reduction in value, or modify, change, or not apply the regulation to the owner's property."

Pacific Northwest planner Richard H. Carson, who wrote the article, doesn't have a sympathetic view of this property rights movement. Carson states, "Many of these initiatives are not homegrown, but rather funded nationally by conservative, out-of-state, nonprofit organizations. The result of passage of these initiatives will be more than the unraveling of the environmental and land use planning laws created in America in the 20th century. There is also a major economic impact to deal with," he states, based on the cost of claims, litigation and administration.

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