Wednesday, February 23, 2005

We are Borg Gov. Resistance is futile.

Question: What happens when someone gains absolute power?
Answer: They rule "absolutely."

First things first:
I am not a lawyer. Anything that I say in this article should not be construed as legal advice. I am a planner. Everything that I say in this article should be construed as a planner's perspective on an issue that affects the progress and planning of cities. (Whew! That always stings a bit.)

This post is intended to take a very complex legal concept and present it in a manner whereby the average blog surfer can see both sides of the issue.

Since the dawn of time (or at least since there were more than two people on the earth) human beings have sought the company of others. Non-familial groups began to congregate together for many reasons. Larger groups meant safety, social interaction and trade opportunities. At first, an unwritten code of conduct was sufficient to maintain order. Eventually, one individual, or a small group, became recognized for the ability to lead. Finally, as groups grew larger, the need to agree on some sort of governing doctrine became important.

Through all these stages, one notion reigned supreme. That was the notion that, in order to keep order, then the individual must concede some level of liberty. To keep the group safe as a whole, individuals could not be permitted to kill, rob, rape, defraud, etc. other members of the group. Thus the notion of a "police power" was born.

The police power of a government is intended to be:
The inherent right of the state to regulate for the purpose of promoting health, safety, welfare, and morality. Police power gives the state the right to impose certain restraints on human conduct which are reasonably necessary in order to safeguard the public interest...

From: Real Estate Glossary

All community planning laws were created to help a community grow in a logical and reasonable manner. These laws are based in the police power of the state. Examples of these laws include zoning laws (seperating uses so that a pig farm cannot be placed next to a residential neighborhood), subdivision codes, (land cannot be divided into parcels for homes when adequate water or sewer facilities are not available) and building codes (a building must be designed to withstand certain wind speeds). There is also an important power that flows from the police power and that is the right of "eminent domain." This power gives the government the right to force landowners to accept fair payment for land where there is a "substantial public need." Before you gasp in astonishment, hear me out.

We have all heard of cases where a single stubborn landowner has halted development by refusing to sell the land. In the private sector, negotiations occur whereby both parties try to agree on a price. If successful, the development occurs. If not, then developer moves on, usually. I personally know of a case where a steel and pipe distributor was able to acquire over forty acres worth of properties, except for one small house. The owner of the home simply refused to sell. The steel and pipe company went to great lengths, offering much more than the property was worth but no agreement was reached. Finally, the steel and pipe distributor built his facility around this small house. After about a year, the owner of the home begged the steel and pipe company to buy his home. It seems he just could not stand the noise anymore. This noisy facility operated 24 hours a day, a fact that the homeowner knew before refusing to sell, and he was surrounded by forty acres of clanging and banging. Obviously the company had no reason to purchase the property at this point. The homeowner moved, renting his little noisy house (when he could find renters).

The public sector is a bit different. The projects can be much grander in scale, much more expensive, and the benefits much more widely enjoyed by members of the community. Therefore the Fifth Amendment to the Constitution allows government to "take" private property for public use as long as there is fair compensation. Any responsible public entity, however, does not use this power lightly. These cases are always contentious and most jurisdictions would rather negotiate with landowners and come to some sort of mutual agreement. But when a project is stopped by that "single stubborn landowner" then the jurisdiction can "force" an owner to sell at fair market price.

Some jurisdictions, however, are testing the limits of emminent domain. Currently, the Supreme Court is reviewing a case, Kelo vs. City of New London, where the city is trying to "take" the homes of people in order to give the land to a developer to build a waterfront hotel and conference center, office space and 80 residential properties. Professor Bainbridge has a great post at Will Leviathan Prevail?. He has much to say about the details of the case. You should read it.

In the Kelo case, New London, Connecticut has concluded a development that will pay more taxes is a justifiable public use. Remember, this is not a school or a highway that is being built. It is instead a hotel and conference center; a development that only benefits the community through increased taxes.

Now, I am a planner and Ii understand the reasons that government might have to use force. But I am also a citizen and private property rights are very tightly tied to personal freedom. If one does not have the right to own property, what other rights really matter? If the government can take your property away, at will, the only thing left is your personal freedom. If the Supreme Court decides for New London in this case, we have clearly gone over the edge of a very slippery slope.