19 Aug At Last, a Property-Rights Victory!

August 19, 2004

By Henry Lamb

Landowners across the nation can breathe a deep sigh of relief because of a decision rendered by the Michigan State Supreme Court July 30. The court reversed a 1981 decision that has allowed state and local governments to take the private property of thousands of landowners and then give or sell it to other private entities.

In 1981, the same court allowed the city of Detroit to condemn an entire community known as “Poletown” so General Motors could build a new factory. More than 1,000 homes, and 600 businesses and churches were bulldozed, justified by the city’s argument that the jobs and tax revenue the new factory would produce provided a sufficient “public benefit” to warrant the use of government’s eminent-domain power.

Since that decision, tens of thousands of individual property owners have been uprooted in every state in the name of “economic development.” Often, the property taken by government was sold to another private entity – often at a profit – redefining the constitutional term “public use” to mean whatever the municipality believed to be “public benefit.”

In case after case, the courts have upheld these eminent-domain cases, relying on the 1981 Poletown decision.

More than two decades later, the Michigan court corrected its mistake, saying: “We overrule Poletown 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.”

Since the ruling was based on the State Constitution, it is not appealable to the U.S. Supreme Court. The victims of the 1981 decision are not affected by the reversal, but it will have profound implications for all future eminent-domain actions.

The Poletown reversal is undoubtedly causing gastronomical distress in municipalities and economic development agencies across the country that are, at this moment, processing hundreds of eminent-domain condemnations for “public benefit,” rather than for “public use.”

In community after community, visioning councils are developing comprehensive land-use plans, enforceable largely by the municipality’s power of eminent domain. The Poletown reversal must put a monkey wrench into these plans. No longer can a city simply declare private property to be an obstacle to economic development as justification for condemnation.

If the public benefit from economic development is insufficient to justify taking of private property by eminent domain, then perhaps open space, critical habitat and environmental protection are also insufficient reasons to take private property. The U.S. Constitution does not say “public benefit,” it clearly says “public use.”

The Southwest Florida Water Management District is threatening the use of eminent domain to take Jesse Hardy’s land in their Everglades Restoration Program. Is this program a “public benefit” or a legitimate “public use,” as intended by the Fifth Amendment?

In community after community, eminent domain power has been used to acquire private property that has then been sold or given to a private, not-for-profit entity for preservation. Is this public use or public benefit?

Every person whose land is threatened by any kind of government action should seize on this question and force the government agency to prove that the proposed taking is indeed a legitimate public use, rather than merely a public benefit.

Land-use agencies, at every level of government, should take a long, hard look at the Poletown reversal and re-evaluate the criteria by which they enforce land-use rules. Rules and regulations that preclude land use by the owner are often justified on the basis of public benefit. No longer can this justification be raised without a challenge.

The Poletown reversal has restored some of the sanctity of private property, so well-recognized and respected by our nation’s founders. It is high time the judicial system recognized the value of private-property rights, and recognition by other government agencies is long overdue.

As welcome as the Poletown reversal may be, government has a long way to go before regaining sufficient respect for private property. Still, communities, states and even the federal government are using tax dollars to buy private property, not for public use, but for what they describe as public benefit: open space, watersheds, viewsheds, scenic areas, historic areas, heritage areas, buffer zones, habitat and the like.

Government should immediately stop further land acquisition from private owners, and begin divesting its inventory to maximize land holding in private hands. Government should own no land beyond that required for the essential government functions as set forth in the U.S. Constitution.

Perhaps the Poletown reversal is a good first step toward this goal.

Henry Lamb is the executive vice president of the Environmental Conservation Organization and chairman of Sovereignty International