Our General Assembly is wrestling with the eminent domain powers of local government after a federal Supreme Court ruling last year in the case of Kelo vs. the City of New London, Conn. The city wanted to condemn the Kelo home so the property could be sold to a hotel developer.
State courts upheld the city, and so did the federal courts. The Fifth Amendment to the federal constitution states that “nor shall private property be taken for public use, without just compensation.”
Compensation was not at issue. The question was whether it was a “public use” to take property from one private party to sell it to another to further some public plan resembling urban renewal. The federal courts basically held that it was up to the state of Connecticut, not a federal court, to determine what was a “public use.”
Deference to state authority in these matters goes clear back to the compromises that resulted in the U.S. Constitution. It was left to the states to determine what was “private property.” Back then, you could own other human beings in South Carolina, but not in Massachusetts. It took a long and bloody war to change that definition of private property.
But differences remain today. Water rights are valuable property in Colorado, but they’re unknown in humid places. A river’s bed can be private property in Colorado, but it’s a public right- of-way in Texas. So even before we get to the problems of defining “public use,” we have wide variance as to what constitutes “private property.”
After all, in a “state of nature,” you could really own only what you could carry on your back and defend. Any property beyond that depends on some degree of government: courthouses to record property boundaries, sheriffs to apprehend trespassers, servile senators and representatives to extend the copyright period, courts and prisons to convict and punish thieves, etc.
As for “public use,” it’s easy to understand the logic of “We’re going to condemn your ma-and-pa muffler shop so we can sell the parcel to a big-box store which will pay more sales taxes, thereby reducing the tax burden on the majority of the community.”
It’s understandable, just as understandable and wrong as the impulse to burglary. It implies an obligation by every property owner to put money first.
In the Kelo ruling, the Supreme Court essentially encouraged states, if they didn’t like the ruling, to limit the condemnation powers of local governments and related urban-renewal authorities. That’s what our legislature is pondering now.
Basically, it makes sense to ensure that a “public use” is actually something the public uses, like a park or road or library, rather than some broader “public purpose.”
But there’s another angle to this. Salida has two stoplights. One’s out on the highway in front of Wal-Mart, and it’s relatively recent. The real “town stoplight” is at the corner of First and F streets in the center of our downtown. The buildings at three corners of the intersection have businesses.
The other edifice, known variously as the “Penny Pincher” or “Stoplight Mercantile” or “A.T. Henry Building,” is empty, and has been for years. The downtown merchants would love to see a retail tenant there. After all, the more shopping, the more potential trade.
But the owners of the building just sit on it. They don’t rent it and they won’t sell it. Salida isn’t the only town with that kind of problem building. My Saguache friends talk about the shuttered Saguache Hotel in the same way – how are they supposed to get anything going on Fourth Street, the town’s main drag, when its principal structure is sitting empty?
In Salida, there’s been talk of somehow persuading the city to threaten to condemn the building in the hope that the owner might respond by doing what good capitalists do, and get some income from the building. There’s also been talk of looking into a “vacancy tax” in the commercial district, to encourage landlords to put their property to work.
This isn’t the talk of socialists. It’s coming from hard-working entrepreneurs, the small businesses that are in theory the heart of American capitalism. It can be reasonably argued that the prominent empty building costs them money.
Is there some way to solve these problems without giving local government power it can easily abuse? I haven’t been able to think of one, but perhaps there are wiser heads in the legislature.
Ed Quillen of Salida (ed@cozine.com) is a former newspaper editor whose column appears Tuesday and Sunday.
