Our Changing Lands

April 1, 2006
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After the United States was established, the real work of writing the country's Constitution began as well as the work to create a government that would serve its people, guaranteeing them certain rights. Although the Constitution was ratified in 1788, it failed to address certain issues and rights deemed important by our Founding Fathers. Thus, 10 amendments were created, known as the Bill of Rights. The Fifth Amendment addressed one of these significant issues: ""¦nor shall private property be taken for public use, without just compensation."

It was common in other existing governments of the world for the king or governing body to take private land at will. In many countries, private land rights did not exist in any respect, and in some, the people may have been able to own buildings but not the land on which they rested. Word spread throughout the world that in this new country called the United States of America, land was available for private ownership and could not be taken away except for public use with just compensation.

For the most part, the original 13 colonies were subdivided under the English system of metes and bounds, based on land grants and title awarded to important people or for government service. At the end of the Revolutionary War, the new government of the United States put pressure on the original colonies to set western boundaries to their states. The land between the original colonies and the Mississippi River then became known as the Western Lands.1 It was available to the federal government, later becoming a great magnet for immigrants in search of land. A system of land patent ownership expanded westward and became the great foundation of land ownership in the United States.

The colonies had amassed debt for funding the eight-year Revolutionary War. Lacking a tax base or a strong monetary system, the disposal of the Western Lands served a number of purposes. It raised money to pay war debts and brought in people who populated the territories, leading to the creation of new states and a solid tax base. When a state entered the union of the United States of America, it agreed to the Enabling Act, which required that all of the unappropriated (unpatented) lands be forever granted to the Union for its disposition. The backbone of this plan was the land patent and disposal of the lands for a fair price. The Land Ordinance of 1785 set in motion the present system of dividing land into sections and townships. They were to be surveyed first, then sold by the acre to those with money. The purchase of this land was not based on rank, title or privileged class, but rather on a first-come basis. By definition, a land patent is the only form of absolute title to land in the United States, highlighted by the court case U.S. v. Stone (US 525)2 that states: "A patent is the highest evidence of title and is conclusive as against the government and all claiming under junior patents or titles."

This system of land ownership has served America well for 200-plus years and has resulted in the building of a great nation. But attacks against our land ownership system by recent Supreme Court interpretations of the Fifth Amendment to the Constitution leave our future rights in doubt.

This land patent deed granting 311 acres in Ohio to Joshua Lamb was signed by Thomas Jefferson on May 4, 1802. Courtesy of the Surveyors Historical Society.

The Legal Issue

It has been almost a year since the Supreme Court rendered its decision on eminent domain in Kelo v. City of New London, Connecticut3 (June 2005), and the controversy over that decision has yet to diminish. In many legal circles, barely an eyebrow was raised at the decision, at least in the beginning. That's because the outcome was predictable and in line with a long history of similar cases.4 However, because the decision struck a chord so close to home, it has subsequently caught the attention of ordinary citizens as well as legal scholars. The decision has also been of great interest to land surveyors, who must be well-versed in all real property issues involving private property rights.

For background purposes, the issue in Kelo is the Supreme Court's interpretation of the Fifth Amendment to the Constitution. The Fifth Amendment, which applies to the federal government, is made applicable to the states by the Fourteenth Amendment. The Fourteenth Amendment, in pertinent part, states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

From a purely legal standpoint, the most significant issue decided in Kelo is the Supreme Court's final nail in the coffin of the "public use" clause of the Fifth Amendment. Previous decisions5 of the Court laid "public use" in the coffin; Kelo sealed the coffin and prepared that clause of our Constitution for burial with a 5-4 majority that upheld the city's invoking of eminent domain. Justice Sandra Day O'Connor in her dissent stated that the Court's decision has washed out "any distinction between private and public use of property-and thereby effectively...delete[d] the words "˜for public use' from the Takings Clause of the Fifth Amendment." As Justice Clarence Thomas added in his dissent, "the Court has erased the Public Use Clause from our Constitution." The Court, however, did not just leave that space blank, instead they replaced the words "public use" with "public purpose." And herein lies the debate-what constitutes a "public purpose"?

This is our controversy. One argument, put forward especially by Justice Thomas, is that "public use" should be interpreted in the plain language in which it is written. That it should mean "use" by the public, that the public must own the condemned property as when it is acquired for a roadway, an interstate highway, a military base, a post office, or some other government use. Another definition could be that the benefit from the condemned property must go directly to the public, such as when land is condemned for common carriers, railroads for instance, or for quasi-government agencies like power companies, telephone companies or other similar utilities that will directly benefit the public.

The winning argument, however, was that "public use" is for any public purpose, whether it be economic gain in the form of increased tax revenue or aesthetic gain in the form of improvements to the general welfare of the community at large. "The concept of public welfare is broad and inclusive"¦. The values it represents are spiritual as well as physical, aesthetic as well as monetary"¦. It is only the taking's purpose, and not its mechanics"¦ that matters in determining public use." In other words, if this broadly defined public purpose is met in almost any way, the government can seize property and turn it over to private developers in order to achieve the developers' goal (whatever that goal may be-shopping center, housing development, museum, stadium, parking lot, etc.). Actually, and in accordance with this ruling, the government doesn't even have to go to that much trouble. It can authorize the private developer to seize property directly, bypassing the middleman. As the Supreme Court stated, it's not the "mechanics" of the taking but the "purpose" that counts.

This is where ordinary citizens and land surveyors enter the fray. They see the decision in Kelo as opening the door for state and local government to take any property as long as it is for any "public purpose." Unfortunately, Kelo didn't open that door. The door has been open for some time. Kelo simply brought the problem to the attention of the masses because of its seemingly blatant disregard for private property rights.

Countless controversies are on the books underlined by the eminent domain issue. Private developers who wish to obtain land for expansion deem properties as "blighted" or "deteriorating."

The Good, The Bad and The Ugly

For states' rights advocates, there is plenty to be happy about with the decision in Kelo. If nothing else, the Supreme Court clearly and unequivocally placed the issue of eminent domain back into the hands of the states. This is where most property rights issues reside anyway. It is, however, interesting that states' rights, generally a conservative issue, was inferentially being championed by the liberal majority of the Court while federalism and centralized control were being argued by the conservative minority. But the more common interpretation has been that the liberal majority was actually supporting government confiscation of private property for general redistribution while the conservative minority was supporting a stricter construction of the constitutional language. Nevertheless, the result is indisputable. The Court abdicated control over the issue of eminent domain to the states by ruling that "public use" means "public purpose." The majority wrote that "[b]ecause that plan [New London's development plan] unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment."

For those who were hoping that the Supreme Court would step up to the plate and crush one out of the park for strict construction and put the brakes on state and local government confiscation of private property for supposed public purpose, then this decision is a bad one. This is where most ordinary citizens feel that they are with regard to the decision in Kelo. As Justice O'Connor stated in her dissent: "The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." Justice Thomas added: "If such "˜economic development' takings [such as the takings in Kelo] are for a "˜public use,' any taking is"¦." In other words, the only limit on the power to take private property will be the limits that are self-imposed by the states.

The ugly part of this decision is that it has emboldened state and local governmental entities, and even non-governmental entities, to grab properties from private land owners in order to clear the way for new shopping centers or other private development projects that will bring in increased tax dollars-all, ostensibly, in the name of "public purpose." "Local and state governments are now using their awesome powers of condemnation, or eminent domain, in a kind of corporate triage: grabbing property from one private business to give to another," wrote Steven J. Eagle in "A Tale of Pragmatism Gone Awry."6 Eminent domain "has become a marketing tool for governments seeking to lure bigger business"¦ cities and towns across the country now routinely take property from unwilling sellers to make way for big-box retailers."7 And if state governments don't curtail this activity through revisions in their eminent domain laws, Kelo all but assures us that the Supreme Court will do nothing to stop or even slow down this activity. And that could mean a major impact on private residents and small business owners.

JEFF STAHLER: (c) Columbus Dispatch/Dist. by Newspaper Enterprise Association, Inc.

The "Us" vs. "Them" Conundrum

Nearly six months after the Kelo decision, private residents Carl and Joy Gamble, and small business owner Joe Horney of a suburban area in Ohio were the first to stand up against the June court ruling, when the city of Norwood near Cincinnati tried to swap out their property for a development of shops, restaurants and offices. The Gambles and Horney were backed by a throng of Ohioans, who appeared in court to hear arguments against the city. They later picketed outside. These protesters, fighting against what they consider eminent domain abuse, are also supported by Washington, D.C.-based Institute for Justice and its grassroots group, the Castle Coalition, a nationwide network of citizen activists working to stop the abuse of eminent domain in their communities.

In June, shortly after the Kelo decision, the Institute of Justice fronted $3 million to fund the national effort against eminent domain at the state and local levels. The Castle Coalition established the Hands Off My Home campaign, a crusade that, according to the campaign's mission statement, seeks to "protect every American home, small business and house of worship from the government and its corporate allies." Dozens of other organizations have rallied in the fight against private developers and governments who have distressed citizens and small business owners.

Numerous objectionable actions to the eminent domain issue are being taken as well. In mid-December, the Michigan House and Senate proposed a constitutional amendment, resolution SJR-E, in response to Kelo. In November 2006, citizens will voice their opinion on the amendment, which seeks to protect home and small business owners from eminent domain abuse. Essentially, the amendment calls for the government to prove, with clear and convincing evidence, that property is indeed "blighted." Property owners will need to become involved to prove otherwise.

Within a two-week period in early February, two notable banks, BB&T-the nation's ninth largest financial holdings company-and Montgomery Bank with 11 branches in Missouri-one of the worst state offenders of the eminent domain issue-became the first two banking establishments in the nation to refuse loans for projects involving the threat or use of eminent domain. Citizens countrywide hope other banks will follow suit.

Countless controversies are on the books underlined by the eminent domain issue. Private developers who wish to obtain land for expansion deem properties as "blighted" or "deteriorating"; these properties include art museums, churches and other religious facilities, schools and student-occupied housing, historic hotels and neighborhoods, and common homesteads like the Gambles'. Heart-wrenching stories from war veterans, the elderly and handicapped individuals are being heard in court. Local governments and private developers argue the takings are for improvements that will increase tax revenue and improve communities. Without a fight, these properties could become condominiums, shopping centers, parking lots and office space.

In defense of private developers and some local governments, Delaware Gov. Ruth Ann Minner signed eminent domain legislation in the wake of Kelo that reinforces the ruling. Private developers and municipal and city officials argue that state eminent domain reforms will negatively impact efforts to rehabilitate and redevelop areas they deem in need. Citizens and activists simply ask that eminent domain be put in check.

As city governments and private developers seek to improve their communities' economic strength, lower poverty and enhance overall standards of living, eminent domain makes sense. Organizations like Habitat for Humanity prove that improvements to neighborhoods extend throughout the communities in which they reside. It is not deniable that solutions are needed. But opponents of eminent domain offer alternative tools for such improvement.

The Reason Foundation, an organization based on libertarian principles, suggests the implementation of zoning regulations that restrict land uses to certain types and densities; employment of tax rates, tax abatements and tax incentives to promote certain types of development; upgrades of roads, sewers, public transit and other infrastructure; and the voluntary purchasing of land.

Following Alabama's lead last August-the first state to enact legislation against the abuse of eminent domain-43 states have either passed or are considering legislation to reform their eminent domain laws, according to the Institute of Justice. At this point, it will be up to each state's supreme court to decide the fate of its residents and its private developers. In its response to the Gamble and Horney case expected sometime this summer, the Ohio Supreme Court will set a precedent for other states. A yearlong nationwide study to be conducted by the Government Accountability Office hopes to bring some of the real-world issues to light. The outcome of the fight against the abuses of eminent domain is yet to be determined. Will our right to land set out by our Founding Fathers be a broken promise?

Milton Denny, PLS, is the owner of Denny Enterprise LLC in Tuscaloosa, Alabama, a company serving the surveying and mapping community through consulting and seminar services. Lieca N. Hohner is POB's editor. Jeff Lucas, PLS, Esq. is a licensed surveyor in five states and a member of the Alabama State Bar. He is in private practice in Birmingham, Ala.

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