Property rights: a license to squeal

| January 09, 2008
Wake County legislators Dan Blue (left), a Democrat, and Paul Stam, a Republican, were two of four primary co-sponsors of an eminent domain bill that passed the House but was rejected in the Senate. The proposed legislation was backed by the N.C. Property Rights Association.
Wake County legislators Dan Blue (left), a Democrat, and Paul Stam, a Republican, were two of four primary co-sponsors of an eminent domain bill that passed the House but was rejected in the Senate. The proposed legislation was backed by the N.C. Property Rights Association.

In the ideological world, it's tough to be consistent. Liberal defenders of the right to free speech have historically been willing to carve away exceptions when confronting ideas with which they disagree, particularly in the area of so-called "hate speech." Conservative abhorrence for government intrusion in private life has often ended at the bedroom door.

Even for purists, absolutism has practical limitations. Constitutional rights can conflict with one other, and the protection of those rights can be a balancing act that must occasionally choose among competing interests. Yet that hasn't stopped ideologues from invoking one right or another as sacred and paramount to all others—especially when it affects them directly.

So it is with property rights, a hot-button topic in cities and towns across the country. To many conservatives, property rights have become a key plank in their ideological agenda alongside the right to life, lower taxes and unrestricted gun ownership. For them, as one commentator summarized, "The right to own property would seem to be the ultimate personal freedom, well beyond the value of free speech." Property rights have been invoked to oppose land use planning, development restrictions, environmental protection and such public health measures as municipal smoking bans. In this construct, liberals are the enemy, and creeping socialism the consequence of complacency.

Issues that involve property rights, even if the link is tenuous, have given rise to unrestrained hyperbole from the right. News & Observer columnist Rick Martinez squawked last February that "[i]ncreasingly, property rights and the fundamental American values and freedoms they bestow are being ignored in North Carolina. Nearly every day I read about a county commission or a state panel eroding basic property rights under the guise of managing growth or protecting the environment."

But by casting property rights as an inviolable, us-versus-them ideological issue and using the concept to attack all manner of marginally related proposals, conservatives are missing a rare opportunity to build alliances and develop clear majorities to influence public policy. That's too bad, because the time for such an alliance is way overdue.

The June 2005 U.S. Supreme Court decision in Kelo v. City of New London focused attention on property rights and sparked outrage across the country. In that case, the Court ruled that the Connecticut city could use its power of eminent domain to condemn a family home on prime land and turn the property over to private hands for "economic development" purposes. The benefits to the city and the public at large, the Court stated, were sufficient to constitute a legitimate public use under the law.

The decision in Kelo would appear to open the door to governmental abuses in the name of economic development. Cities and counties wishing to expand their tax bases could theoretically bulldoze entire neighborhoods and replace them with shopping malls. Citing Kelo, a federal judge in New York recently dismissed a lawsuit to prevent the condemnation of 13 perfectly viable buildings and businesses to make way for a massive mixed-use project.

In North Carolina, cities and towns waving the economic development banner are engaging in similar battles with existing businesses and homeowners, though on a smaller scale. Forced annexations are a prime example: While annexations are supposed to promote sound urban development, some municipalities have forcibly annexed wealthy subdivisions simply to pad their tax bases. Poorer communities that need the services that accompany annexation—but don't add much tax value—have been left to their own devices.

Kelo further muddied the long-standing debate over the definition and scope of property rights. The Fifth and Fourteenth amendments to the U.S. Constitution prohibit any government from depriving citizens of "life, liberty and property" without due process, and the Fifth Amendment further states that "private property [cannot] be taken for public use, without just compensation" (often referred to as the "takings" clause). The interpretation of this language was left to future generations: As with the rest of the Bill of Rights, the Framers wisely chose not to get into specifics, which would have required a book-length treatise on each sentence and left huge gaps from societal changes they could never have anticipated.

In response to Kelo, many states have proposed laws to prohibit local governments from exercising eminent domain for economic development purposes. The N.C. Property Rights Association crafted a constitutional amendment to that end that was passed by the state House last session but rejected by the Senate. Association founder and chairman Kieran Shanahan, a lawyer and former Raleigh City Council member, says his group will keep trying to get the amendment adopted. "It is an area where a call to action is necessary," he says.

Other groups have similarly weighed in. The Center For Local Innovation, a Charlotte-based group set up by the conservative John Locke Foundation and former Raleigh Mayor Tom Fetzer, states in its post-Kelo position paper on eminent domain that "[e]ven if property is taken in part for economic development, it is inappropriate."

An appealing idea, even if it comes a day late and a few billion dollars short. The fact is, the unreasonable and unjust abrogation of property rights for economic development purposes has been a significant local, state and national problem for years, predating Kelo by decades.

No more egregious example exists than the condemnation of private property for the construction of sports stadiums, convention centers and other massive municipal projects, which are invariably rationalized as economic catalysts for depressed downtowns (though they almost always fail in their revitalization objectives). The giant boondoggle known as the Global TransPark in Kinston was made possible by the condemnation of numerous homes and farms. And roadbuilding almost always involves the involuntary condemenation of at least some of the route—while most roads are built to alleviate traffic congestion, the primary purpose of many others (segments of I-540 come to mind) is to open land for malls, subdivisions and other massive development projects.

Property rights violations go beyond takings for economic development, and they don't have to be life changing to cross the philosophical line. Cities and towns routinely pass laws to regulate lawn length, where cars can be repaired, and the type of furniture permitted on front porches, all of which go beyond the legitimate government interest in protecting public health and safety. Citizens can block specific uses of property that are permitted under zoning laws simply because they don't like them. In Johnston County, a group of neighbors filed suit to prevent a local soccer league from building fields on land donated for the purpose by the owner (and with the county's blessing).

Yet these are not the kinds of issues that have inspired the majority of property rights advocates to action. Even as the Lockians and others decry conservation initiatives as "land grabs" and complain bitterly about downzoning requests, they relentlessly champion new roads and growth—even if such economic development tools come with some inconvenient steamrolling of people's homesteads against their will. Nor is it any real surprise that property rights advocates are silent when they perceive that such rights will adversely affect their property values—for some, after all, it's more about the money than the ideal.

Unfortunately for those who live in a black-and-white universe, property rights are an enormously complicated concept that demand a consistent approach if they are to have validity and gain political traction. And like such issues as business incentives, they need to be addressed as a matter of public policy, not used as a partisan brickbat to fling whenever it's convenient. The key is equity and fairness, balancing genuine community interests and needs with those of individual property owners when they conflict. Every zoning decision, for instance, should apply these principles—"the rule of reasonableness," as Shanahan calls it.

Shanahan's bottom line is a good place to start. In most property rights disputes, he notes, "the deck is totally stacked against the landowner." Compensation for the condemnation of a business in North Carolina, for example, does not include relocation costs or consideration of the value of the business. Landowners must often incur prohibitive legal expenses even if they successfully challenge a condemnation in court. Establishing an independent review board or otherwise creating a fair process to mediate eminent domain or annexation disputes before they reach litigation would be an improvement to the current picture. The constitutional amendment may also help, though the crucial definition of what constitutes economic development—and who gets to decide—will still be unresolved. Whatever the approach, Shanahan says, "the playing field needs to be leveled."

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