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Archive for Saturday, October 1, 2005

Bipartisan measure would protect property

October 1, 2005

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— Kansas voters would decide whether to put property rights protection in the state constitution under a proposal unveiled Friday.

The measures were drawn up in response to a recent U.S. Supreme Court ruling in a Connecticut case that said local governments can use the power of eminent domain to take property for private economic development projects.

The decision has caused an uproar among property-rights advocates.

Under eminent domain, government can take private property, with just compensation, for what is deemed a societal good. Traditionally, eminent domain has been used to clear the way for roads or other public works projects.

Recently, however, some states, including Kansas, have used the government's power of eminent domain to buy out people from their residences to make way for private development, such as the Kansas Speedway in western Wyandotte County.

"The notion that property ownership is a right doesn't have much meaning if a majority of the city council, county commission or state Legislature can vote to take a person's property and give it to somebody else," said Sen. Derek Schmidt, R-Independence.

Schmidt and Sen. Greta Goodwin, D-Winfield, have proposed a state constitutional amendment that would guarantee private property cannot be taken except for public use.

The proposal would require two-thirds approval in the Legislature before it could be put on the statewide ballot for voters to decide.

Another measure from the two legislators would prohibit the government from taking property from one owner and transferring it to another.

The ability of governments to condemn land for traditional public purposes, such as roads, bridges or libraries, would not be affected, they said. And their measures would allow for eminent domain to be used for economic development projects in blighted or abandoned areas.

Schmidt and Goodwin said they intend to push for their measures during the next legislative session, which starts in January.

Goodwin said a proposal by developers in her area to condemn farmland to make way for a recreational lake "pointed out how fragile our property rights were in Kansas."

Comments

jrysk 8 years, 6 months ago

Let's not fool ourselves about recent proposals to restrict eminent domain. Either laws raise the "level of scrutiny" (individually enforceable legal protection) for facts or they don't. Too many states, now, have responded to the Kelo case with meaningless eminent domain "reform." The Kansas proposals seem to forbid government from taking land and handing it over to private parties. But in other jurisdictions this problem has been overcome easily: the government can simply create an "authority" (such a housing or redevelopment authority), turn the property seized over to that authority, and the authority can give it to a private party.

The proposals also seem to limit eminent domain over housing. Currently housing only enjoys "minimum scrutiny" under the law. Kansans should ask themselves: under the proposals, would housing enjoy "intermediate scrutiny?" "strict scrutiny?" And under what circumstances. These levels of scrutiny have been litigated for decades and provide real protections--IF that is what Kansas proposals call for.

If you want more information on the Constitutional background of the eminent domain debate, you can look at this article, which will appear in the November 2006, Stetson Law Review:

Ryskamp, John Henry, "Kelo v. New London and Continuing Enforcement of the New Bill of Rights With a draft complaint for a Constitutional right to housing under the Due Process Clause of the Fifth Amendment" (September 17, 2005). http://ssrn.com/abstract=562521

Pin these legislators down: what protections are they really offering?

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