To:
From: "Tenant"
Subject: Code Word: Regulatory Taking. Em. Dom. fight could go too far
NB - The columnist does not utter the words, but you
can be sure some one will at some point use the
arguments of private property and regulatory
takings to revisit challenges of rent control and
rent stabilization (the fact that they are mostly
dead anyway is a separate issue).
That is why it is important that the sanity of
fighting abuses of Eminent Domain and corporate
pork not develop into complete rihgt-wing
hysteria. It's important that those of us on the
left or center not allow the right to completely hijack issues like
this.
When the Atlantic Yards development gathered
steam in Brooklyn, for a while it seemed that the
Libertarians were at the forefront. Call them
cults, call them extremists, they are not the
enlightened anarchists who understand that
government involvement in affairs can, in
thought-out moderation, be beneficial (as long as
Democratic hack politicians are kept accountable).
=============================
Publication:The New York Sun; Date:Mar 1,
2006; Section:Editorial & Opinion; Page:11
Backdoor Eminent Domain
Thomas Bray Mr.Bray is a Detroit News columnist.
State after state is rushing to bar
government from �taking� private property for
transfer to another private entity. It�s part of
a populist firestorm triggered by the U.S.
Supreme Court�s decision in a New London, Conn.,
case in which homeowners were ordered out of
their houses in order to make way for a city-ordered redevelopment
scheme.
But this could be only the opening
shot.Tempers also are growing short over the use
of �regulatory takings� � government-imposed
rules that deprive owners of the full use of
their property without compensation. Such
takings, which amount to eminent domain by the
back door, were in the spotlight at the Supreme
Court last week, where oral argument took place
on a pair of cases emanating from Michigan.
The first involves a Midland developer, John
Rapanos, who has been fined millions of dollars
for filling in three parcels of property alleged
to contain wetlands. The second involves
developers June and Keith Carabell, who were
prevented from building a 112-unit condominium
complex in suburban Detroit after regulators
determined it might jeopardize the �navigable waters� of the United
States.
But the Carabell development is more than a
mile from any recognizable navigable water. In
the Rapanos case, navigable water is at least 20
miles away.With the addition of Chief Justice
John Roberts and Associate Justice Samuel Alito,
observers are betting that the Supreme Court may
be even less sympathetic to the argument that any
trickle of water amounts to a �navigable� river.
Even the politicians are starting to get the
message. The House of Representatives recently
passed a bill making it tougher to use the
Endangered Species Act to clamp land use
restrictions on ranchers,farmers and others who
just happen to be hosts to a supposedly
threatened species. The bill may not survive in
the Senate, but it reflects outrage at how a
relatively uncontroversial law has been used to
undermine the Fifth Amendment�s ban on takings without just
compensation.
And in another sign of the times, the Oregon
Supreme Court last week upheld a 2004 referendum
that requires the state to compensate landowners
for the value of their land lost due to a
regulatory taking. Critics complain the Oregon
rule would be too expensive, but that�s precisely
the point. Aside from the issue of citizens�
basic rights,it would force politicians to
consider costs as well as benefits when they seek
to posture as the guardian of the environment at other people�s
expense.
�Too expensive� is a way of saying that
bureaucrats don�t think they can coax the people
� damn them! � into paying for their enthusiasms.
If there is a good reason for a regulatory
taking, at least government should be willing to pay for it.
The merits of some of the anti-eminent
domain laws now pushing to the fore can be
debated. The Michigan legislature, for example,
overwhelmingly approved a November ballot asking
voters to limit the use of eminent domain and
requiring compensation equal to 125 percent of
fair market value even when the power is used for
legitimate purposes. Critics will no doubt argue
that this will simply drive up the cost of legitimate public projects.
But this is just the sort of backlash
government can expect when it has ridden
roughshod over property rights for so long.
Societies in which property rights are endangered
or nonexistent tend to be poor societies � and
poor societies tend to be badly polluted
societies. True environmentalists should be
working with property rights rather than trying to evade them.
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Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.
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Edited 3/1/2006 4:44 pm ET by Reysmont
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