"Willing Sellers"- Just a Facade?

TRACKSIDE by John D. Aloia Jr.

March 22, 2006

The Kansas legislature bows down not only to the Kansas Supreme Court, but also to likes of the League of Kansas Municipalities, the Kansas Association of Counties, and all the other special interest groups who stand to have their members' power and dominion curtailed if true eminent domain reform is enacted. It does appear, based on the eminent domain reform bills that have languished in committee, that the leadership of the Senate is killing all eminent domain reform bills that have any teeth, and has forced the substitution of new words for SB323. When introduced, SB323 was one page long, and while it allowed certain takings for what amounted to economic development, was much more to the point than the current reincarnation. The new Senate wording for SB323 (as of St. Patrick's Day)takes 12 pages to "reform" eminent domain when it should take no more than a short, well-worded paragraph to protect private property rights. In supporting Senate Sub 323, leadership is showing a belief that government's interests come first. If government wants a person's property, then government has to have a way to take it. What do they not understand about "Thou Shalt Not Steal?"

Here are some of the situations in which the bill authorizes the use of eminent domain to steal land for the benefit of another private party: (1) If there is a willing seller. The willing seller concept is but a facade. Incorporating this concept in the bill is an open invitation for The Clerks to use all the powers available to them to so harass a landowner who does not want to sell that he becomes a "willing" seller in desperation, unable to stand against the bottom-less pockets of a government that covets his land. The National Park Service has demonstrated that it can be done as it pursues a policy of eliminating in-holders. (2) If authorized by the legislature. This puts the legislature in a "come to me" position of power and is an open invitation for developers and contractors to "buy" the desired outcome, over or under the table. While bemoaning the need for campaign finance reform, the legislature schemes to enact a provision that guarantees lobbyists will seek them out. (3) If the property is blighted. As proven in cases across the country, The Clerks can twist the definition of "blighted" to satisfy their delusions of glory and the greed of a developer. In Lakewood, Ohio, city officials arrived at a blight designation for coveted property not because the property was falling apart but because it was "functionally obsolescent." What does it mean? The homes did not have attached, two-car garages, had only one bathtub, and had small yards. (4) If a city can demonstrate that no reasonable and prudent alternative to the taking is available so that a public purpose can advance. Here, the term "public purpose" is used instead of "public use." Waiting to be cited in a city's rationale for stealing your land for the benefit of someone else are precedents in jurisdictions across the country that hold that increasing tax revenues is a public purpose. In so doing, greed is legalized.

If you want to read the monstrosity that is Sub SB323, go to www.kslegislature.org and use the "full text of bills" search box on the right-hand side of the page.

The bill may well pass because so many of the heavy-hitting special interests under the dome have bought in on it - but it is not a legislative action that will provide more than a speed bump in the path of a determined government entity that wants to give your land to someone else. What is needed is a hard-hitting constitutional amendment, but there is little chance that either house would pass a resolution to send a constitutional amendment to the people for a vote. A majority of our legislators are apparently tone-deaf to the property rights of the individual citizen and oblivious to the place property rights have in maintaining the freedom of individuals.

"The sacred rights of property are to be guarded at every point. I call them sacred, because, if they are unprotected, all other rights become worthless or visionary. What is personal liberty, if it does not draw after it the right to enjoy the fruits of our own industry? What is political liberty, if it imparts only perpetual poverty to us and all our posterity? What is the privilege of a vote, if the majority of the hour may sweep away the earnings of our whole lives, to gratify the rapacity of the indolent, the cunning, or the profligate, who are borne into power upon the tide of a temporary popularity?" - - Associate U.S. Supreme Court Justice Joseph Story, 1825.

See you Trackside.