Wednesday, August 17, 2005

It can't happen here?or can it?

Guest opinion by Robert J. Holland

Guest opinion by ROBERT J. HOLLAND
Robert J. Holland is a resident of Sun Valley.

Liberals and conservatives alike have been in an uproar against the U.S. Supreme Court's decision in Kelo v. New London (Conn.). The court upheld the power of the City Council to condemn oceanfront homes in a "blighted" area so that a private developer could build a hotel and expensive condominiums. The "public purpose" of this taking of private property from one person and giving it to another private person was to raise tax revenues. The New London City Council is not alone. Norwood, Ohio, a suburb of Cincinnati (homes into stores and offices); Long Branch, N.J., (homes into condominiums); and Hurst, Texas, (homes into retail shopping), are more examples of the city councils' aggressive abuse of the power of eminent domain.

The courts regularly side with the cities. "The burden of proving an appropriation's illegality is on the property owners" (Norwood). With the courts' blessings, "public purpose" has been expanded over the last four or five decades beyond the traditional governmental powers of building roads, sewers, public facilities, and other clearly accepted governmental operations into more proprietary activities. As a result, your property can be appropriated to be replaced by a hotel, shopping center, expensive condominiums, baseball stadium, hockey rink or golf course.

The reaction to these cases by the unsuspecting public has been varied. There is a proposal to condemn the New Hampshire home of the author of the majority opinion in the New London case, Justice David Souter, to build the "Lost Liberty Hotel." A slightly more serious reaction comes from legislators across the country to limit the power of eminent domain through legislation. Neither of these reactions is likely to be effective in preserving the rights of property owners. There are ample provisions in the U.S. and state constitutions that should protect property rights if only the courts observed them. Amendment V of the U. S. Constitution says, in part: No person shall be deprived of life, liberty, or property, without due process of law: nor shall private property be taken for public use, without just compensation.

The Idaho Constitution has similar provisions. Article I, Section 1. says:

Inalienable rights of man: All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.

With the broad interpretations of what constitutes a public use or a public purpose, the courts have sustained the abuses of property rights by state and local governments. Similar abuses of power exist in the Wood River Valley. The city of Sun Valley condemns carriage lamps under the guise of the dark sky ordinance. Sun Valley also requires that developers solve the pre-existing affordable housing shortage. The Aug. 3 issues of both local papers report that some Ketchum City Council members want the new owner of Warm Springs Ranch to build a golf course. With this demonstrated mind-set, it is not a quantum leap to conclude that these same council members would do exactly what those in New London and other places have done. As a result of Ketchum's actions, another needed hotel project has been lost. With over 20 years experience as a city councilman and city attorney, this author has witnessed the growing grab of power by many local governments in order to pursue the purposes of special interests all under the guise of "public purpose." Yes, it can happen here.

There is at least one effective way for the people to protect their enumerated rights. The decision in the New London case is a wake-up call. Those on the left and the right have answered by voicing their displeasure. It is a pleasure to see them agree on something. But it is time for the vast majority of us in the middle to awaken to the realization that our freedoms are not guaranteed by our voting for president every four years. Grassroots political activity, starting with local elections and party activity, is the best guarantee of protecting our property rights. Electing fair-minded people to our city councils is our best hope.

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