Court's Eminent-Domain Edict Is a Flashpoint on State Ballots

By Christopher Cooper
From The Wall Street Journal Online

August 9, 2006

Last year's Supreme Court ruling validating a Connecticut city's authority to seize private property for economic development has sparked a backlash. In several states, conservative groups are pushing ballot initiatives to curb local governments' abilities to exercise not only eminent domain, but also land use and environmental controls.

When a divided court ruled in Kelo v. New London that private landowners had no constitutional grounds to resist eminent-domain property seizures, it effectively kicked regulation of government condemnation suits back to the states. The reaction has been swift: Several states are considering laws that would limit a local government's ability to exercise eminent domain, or the taking of private property for public purpose. Other measures that voters are likely to consider deal with "takings," or government restrictions on private property, such as zoning and building regulations.

In Ohio last month, the state Supreme Court ruled that cities must have a specific reason to seize private property under eminent domain and can't rely on broad justification like economic development to force unwilling landowners to sell. This fall, voters in several states will decide on property-rights proposals.

In the South, four states are entertaining ballot proposals that would tighten the eminent-domain process. A Florida initiative requires local governments to sell expropriated property back to the owners if the land isn't used for the stated purpose, while ballot initiatives in Georgia and South Carolina would crimp government use of eminent domain. In populist-leaning Louisiana, a ballot proposal would prevent local or state government from condemning property and then transferring it to another individual or group, a measure that could affect how the state rebuilds after two devastating hurricanes last year.

But in the fast-growing West, where building and environmental concerns often pit government against developers, a different kind of property-rights movement is under way. Call it Kelo with a twist: Tapping antieminent-domain sentiment that conservatives say runs high among voters, some groups are pushing to limit how governments regulate private property. Measures heading for ballots in a half-dozen states this fall would require governments to compensate landowners if they apply more restrictive zoning retroactively, impose more stringent environmental rules on undeveloped property or apply aesthetic-development regulations on private land as a way to counter urban sprawl.

Some of these measures, called "takings" proposals, began as pure eminent- domain initiatives but have been modified by small-government advocates to make it more difficult to put antisprawl and stricter building-density burdens on current owners. In some cases, the ballot measures would allow a government to waive the requirements for existing landowners; others are tougher, seeking to discourage additional land-use regulations by requiring governments to make cash payments to landowners whenever new rules are imposed.

Versions of these property-rights initiatives are heading for the ballot in Arizona, California, Idaho, Montana, Nevada and Washington.

Some conservatives say it is ironic that the rush to property rights arose from the Kelo case's Supreme Court ruling, which they didn't feel went their way. Grover Norquist, who heads Americans for Tax Reform, a conservative group in Washington, has pushed similar proposals for years but got little traction from national advocates until the Kelo decision. "Two years ago if you walked down the street yelling that the government was taking our property, people would walk around you, they'd think you were a lunatic," he said. "Since Kelo, property rights has become the center of attention."

It is an issue, Mr. Norquist says, that is ripe for citizen balloting, which is allowed in many Western states. Voter propositions, which make it to a ballot through signature collecting, often are employed for issues that state legislators are reluctant to address, such as term limits and budget-growth restrictions. Takings present a similar issue: One that state and local governments are unlikely to embrace on their own.

As with many propositions, such as minimum-wage increases, heading toward voters this fall, pushing the takings issue costs less to advocate than to counter. Mr. Norquist said the issue polls well with voters, which makes it easier to promote than to oppose. Also, some conservative political groups, such as Americans for Limited Government, said it is relatively easy to piggyback the proposal with other ballot measures they are already pushing.

History suggests that supporters of these proposals may have the upper hand, especially in Western states, where governments have moved in recent years to impose restrictive covenants on developers to protect the environment and contain sprawl.

In Oregon, a takings measure that required the state to exempt individual landowners from stricter land-use regulations or pay them damages passed handily. That law, called Measure 37, is serving as a template for takings measures proposed in six states this fall. Property-rights backers are returning to the ballot this year in Oregon, championing a measure that would prevent government from condemning private property if the intent is to turn the land over to a private developer.

Given Oregon's political profile and the reaction signature-gatherers are receiving as they try to place takings measures on the ballot, supporters like their chances this fall. "It's one of those things that will pass everywhere it appears, absent some massive, expensive television campaign against it," Mr. Norquist said. "It passed in liberal, deep blue Oregon already."

Opponents say they are behind in the drive to defeat the measures, in part because conservatives successfully conflated eminent-domain concerns with regulatory takings. "The right is using the reaction to Kelo to slip in these takings measures," says Oliver Griswold, a spokesman for the Ballot Initiative Strategy Center, a liberal group in Washington that tracks state-ballot initiatives. "It totally decimates a municipality's ability to plan for growth in the future. And it has nothing to do with a government taking grandma's house."