Give private property more protection

Tuesday, June 28, 2005

One item that should go quickly near the top of the list of things to do for the 2007 Legislature is a state law restricting local government's powers of condemnation.

Oregon is among those states that has no law against allowing government to condemn land for economic development, which means it could be affected by a stunning U.S. Supreme Court decision last week. The Court ruled, 5-4, that a municipality - in this case, New London, Conn. - can take away people's homes in order to develop the land in a way that will produce more tax revenue, or anything else that the municipality constitutes a beneficial use.

We're not talking about building a badly needed road. We're talking about ripping out a residential area for the enrichment of developers on the theory that it would benefit the community as a whole through increasing taxes and jobs. And local government gets to decide if that case has been made.

Forget that business about a man's house being his castle. If a city, or some other arm of local government wants to tear down a bunch of homes to build condos or a strip mall, this latest ruling lets it do so.

The struggle between economic development and landowners often isn't a fair fight. Government, especially on the local level, is closely tied to the policies, politics and practitioners of economic development.

Economic development and job creation are necessary, and beneficial. But government should use its condemnation powers carefully, and selectively, and never for purposes that are as slippery to define as is economic development, especially when the agents of economic development are usually working hand-in-hand with local government.

Take that a step further: Local government often is the force driving for local development.

In a legal sense, the new Supreme Court ruling would make local government both prosecutor and jury in condemnation cases. It also invites abuse and corruption of the process that leads to condemnation: The worse the target area is made to look, possibly by denial of public services or denying more limited forms of development, the stronger would be the case for condemnation.

Most residents don't have the power to resist the legal bulldozer the court has handed to government.

We don't know of any local cases that would be affected by the ruling, however. The last condemnation case that generated much controversy was several years ago when the Wiard Park District condemned land that was owned by Wiard Community Pool Inc., a private group trying to build a pool next to Wiard Park.

The group hadn't gone forward with pool plans. The district went to court and had the land condemned. We said at the time that, "Condemnation powers ought to be used sparingly and with great reluctance. If the law can't distinguish between what's desirable, and what's necessary, then the law is confused, and that needs to change." That change is even more urgent now that the court has greatly expanded government's power to seize private land.

Editorial board

Pat Bushey wrote today's editorial, which represents the view of the Herald and News editorial board