Piggybacking the overthrow of land-use regulation on eminent domain reform

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The Marketplace radio program had a report on eminent domain reform ballot initiatives. In four states, the reform measures have a strange twist:

Reforming eminent domain is supposed to be about limiting the government's right to bulldoze a house to put up a freeway or a mall.

But some of these measures go much further. They would let citizens sue when government authorities enforce land-use or other laws they personally don't like and think might cost them money. Even though those laws are there to protect the community's interest.

So if you don't mind your next-door neighbors starting a disco nightclub at their house and then suing taxpayers when the government tells them they can't, these are the initiatives for you.

Sound absurd? Oregon enacted just such a law two years ago. Oregonians have since filed 2,700 lawsuits against state and local authorities asking for $6 billion of taxpayer money.

The idea behind these proposals is that any government regulation that limits use of a piece of property should be considered a "taking," and the owner should be entitled to just compensation. The Marketplace story suggests that the language of the amendment could provide a grounds for challenging any regulation, even if it has nothing to do with real estate.

The proposed eminent domain reform initiative in Oklahoma was of the same variety, something I wasn't aware of when I signed the petition. (Shame on me for not reading the whole thing.) In the end, the Oklahoma Supreme Court struck down the petition on the grounds that it dealt with two separate topics, in violation of the State Constitution's single subject rule. Here's part of the Supreme Court ruling describing the provisions in question:

IP 382 next proposes that an owner of private real property is entitled to just compensation for any reduction in the fair market value of the property caused by the enactment or enforcement of a zoning law, with the following exceptions: 1) zoning laws that protect public health and safety; 2) zoning laws required by federal law or nuisance law; 3) zoning laws limiting the use of property for nude dancing or selling pornography; and 4) zoning laws enacted prior to the effective date of the proposed act. IP 382 also contains provisions placing the burden of proof on the public body and providing for an award of attorney fees, costs, and expenses to the landowner. IP 382 sets no minimum amount of reduction in property value to constitute an actionable claim, does not establish the method of valuing property, does not delineate how a landowner may establish causation between a reduction in property value and a zoning law, and sets no statute of limitations for making a claim. Construed broadly, IP 382 renders inefficacious any zoning law that falls outside of the exceptions in subsection 3.

Effectively, it's a zoning freeze amendment. It might even make it impractical for the city to approve zoning variances, special exceptions, and rezonings requested by the owner. Potentially, a neighboring property owner could sue the city on the grounds that granting the zoning change reduced his property value.

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2 Comments

Bledsoe said:

Michael--you and I talked about this several months ago. I too signed the petition without understanding the implications of the land-use provision. The backers of ED reform were appeantly trying to sneek something by us--sham on them!!!

The implications of this provision--if it had passed --are far reaching and mostly negative. For example--if this part of the provision was in palce the agressive developers would be able to put almost anything next to your nice historic home-a license to tear down-lot split- cram jobs- extrmem McMansions. A vision for Tulsa like the no-zoning status of Houston--QTs in the middle of residential areas-AKKKKKKK!!!!!

This part of the proposal was property rights gone wild.

On the other had--we already have a legal principle called inverse-condemnation in Oklahoma and Federal law that allows just compensation when your property is over-regulated by government. Establishing better standards and more clear rules in this area would be a better approach.

pinky said:

here is yet another assault upon private property rights. proponents of same argue it is contractually agreed upon but woefully inadequate disclosure of governing documents make it questionable at best. "eminent domain by hoa" becoming increasingly troublesome for many homeowners across America.

http://www.ahrc.com/new/index.php/src/news/sub/article/action/ShowMedia/id/2655

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This page contains a single entry by Michael Bates published on November 3, 2006 12:18 PM.

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