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The taking of private property

Written by John D’Aloia Jr.

“…. nor shall private property be taken for public use without just compensation.” – – U.S. Constitution, Amendment V. The taking of property by eminent domain for reasons that do not meet the historic definition of “public use” has been much in the news since the Supreme Court handed down its infamous Kelo decision.

Eminent domain is not the only way that private property can be acquired by government. Placing restrictions on the land by law or regulation can also be a taking that warrants just compensation.

The Pottawatomie County Commission has adopted a change to the county’s zoning rules that restrict the use of land that is within the inundation boundaries down stream of watershed dams, that is within the boundaries of the area which would be inundated if the dam was breeched. Two of the stated purposes are to (1) protect life safety and the general public welfare, and (2) to prohibit dwelling units in the inundation area. While existing land uses as of the effective date of the amendment are grandfathered and declared to be conforming, if a person has a residence in an inundation area that is destroyed beyond 51 percent of its real value, by any cause, the home cannot be rebuilt in the inundation area.

Imposing a restriction on property which limits the ability of a landowner to use the land is, for all intents and purposes, a taking of the property. That this is so was recognized in the county commission’s discussions. As reported in the January 31, 2007 Smoke Signal, County Planner John Keller told the commissioners that for dams already in place, the amendment was a compromise on the part of the planning commission and taking the property rights was a necessary measure of that compromise.

A principle that bears on the matter is that when government takes an action “for the general public welfare,” the cost of that action should be borne by all citizens, not just a few. This is the principle behind the Vth Amendment. In this case, the zoning ordinance amendment has taken property rights from everyone who owns property that lies within an inundation area, limiting them as to what they can do in the future with their property. For this, they should not be forced to bear the full cost of what is being done “for the general public welfare.” They should be compensated using general tax revenues, transferring at least part of the cost to all citizens.

The article also stated that the restrictions were needed to “save” the watershed districts from having to upgrade dams, upgrades that would be cost prohibitive. This in itself is a shifting of the financial burden required “for the general public welfare” from all citizens to individual landowners.

The citizens of the State of Oregon recognized the justice involved in these situations when they adopted by referendum Measure 37. Measure 37 requires agencies enforcing a newly imposed land use regulation to either pay just compensation, equal to the reduction of the fair market value caused by the regulation, or to modify or not apply the regulation so the property owner can use their land as allowed at the time they acquired the property. Measure 37 was upheld by the Oregon Supreme Court. (The text of Measure 37 can be read at www.oia.org/SonOf7text.htm.

I know not how many people are affected by the county’s action, or to what extent the value of their land has been lessened, but with 26 watershed dams in the county, and plans for constructing 56 more, I suspect that there are those who will be impacted and will have reason to initiate a request for “just compensation.”

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One Comment

  1. Jay August 2, 2008

    I have dark clould moving slowly over my head and I’m waiting for the storm. I am a 21-year, retired Navy veteran, now and unfortunately afflicted with a spinal cord disorder that has left me a wheelchaired, incomplete quad. I live on South Greenwich Road, a couple of miles South of Kellogg, just about a mile outside the Wichita city limits. I received a flyer in my screen door a few weeks ago, telling our small neighborhood that the two-lane road that runs in front of our properties is going to be turned into a 5-lane road with a 5′ sidewalk on either side. The flyer invited us to attend a “town meeting” to discuss the issue a few days later. They approached us with the change as a “good thing” for us, of course, citing a traffic numbers 80% larger than any count I’ve made on various days since. They went on to say their traffic figure would double within a year or two. To make a long-story short, we were given 13 minutes to speak our minds. This was met with a collective and resounding “no!” from the standing-room-only room of involved residents, answering each question with pollitical correctness. Then the table, consisting of a random Councilwoman, a high-school rep of some sort, several “neighboorhood representatives” unknown to me, and a couple of city “somebodys'”involved with the project motioned, seconded, and passed the issue as fast as it took to say the words. Politely, we were dismissed so as “not to be bored with other business.” The parking lot was abuzz for about an hour.

    Grabbing what I thought was a hand-out flyer from the “official” folding table where the powers-that-be for the meeting were throned, we found that the project of widening our road from 2 to 5 lanes was not for our “traffic relief”. The project down Greenwich was “Phase 2” of a 3- phased plan for this 5 line road, starting at Harry and ending on 127th East. Having heard it it referred to as “the loop project” by a folding-table official suddenly began to make sense. A 5-lane road with 10-feet of sidewalk straddling it, eventually leading to the West end of Andover, did not. Perhaps loop completion falls on them and, perhaps, then it will make sense.

    My wife and I bought this house six months ago, after a two-year search of a “wheelchiar friendly” house in our mid-$150-75 range, outside the city limits, quiet and spacious (having just moved from an Augusta restrictive 800sqft home we dealt with until we got our purses and billfolds right for a move. The Veteran’s Administration was kind enough to make a donation to our new dwelling to cover the costs of widening doorways, specializing bathrooms and providing other necessities/upgrades for this wheelchaired veteran, to the tune of around $43k. A “once-per-lifetime” gift.

    Yesterday, I small crew came to measure just how much of our 50’+ front yard “they” would need. The answer was, that with the current plan, they will graciously leave us with 11 feet to my front door (and to my bedroom), 6 feet to the wheelchair ramp that is required for my home. One of the crew recommended legal action, another said, “don’t worry, they’ll pay you for the land,” which I only found insulting. Many of our neighbors will be far worse off. There was mention of a second meeting two weeks later, which has come and gone.

    So as things stand right now I have a home with real estate marke value comparable to a back-alley boxcar and a home 6-feet from the untold traffic that the new 5-lane road’s purpose will reveal upon completion.

    By the way, they told us there would not be any tax assessments for the “improvements” and that property taxes would “more than likely” go down (personally, I’m betting not as fast as the home’s market value).

    We found the peaceful, spacious home we searched for, in the uncluttered and uncrowded neighborhood outside of any city limit. Now a city we do not live in has plans to take the “peaceful” away in a home that we cannot sell and devalued it drastically… in what I belive to be a deceiptful presentation… and deaf 13 minutes.

    Where would you turn?

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