Property owners in New Hampshire are lucky.

In other states, tax-hungry cities are quick to use condemnation powers to take land from one private owner and give it to a private land developer.

New Hampshire still pays attention to the Constitution’s Fifth Amendment.

According to a report by Dana Berliner titled “Public Power, Private Gain” and published by the Castle Coalition http://www.CastleCoalition.org a project of the Washington-based Institute for Justice, private property in New York, Missouri and Kansas is most at risk, while property owners in Idaho, Montana, New Mexico and Wyoming can trust City Hall to leave them alone.

City Hall’s power to force owners from their land was originally restricted by the U.S. Constitution to public uses, such as building a public road or school.

But private land developers, working hand in hand with city hall, have found ways around these safeguards.

Amendment V to the Constitution reads, “No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

All 50 state constitutions have similar restrictions. Clear enough.

To condemn and take private property local governments must show that the land is needed for a public use and pay “just compensation.”

Land owners nationwide once trusted local governments to respect the Constitution.

But then the U.S. Supreme Court tipped the playing field in favor of land developers.

During the 1950s urban renewal fever was sweeping the nation.

Thousands of towns across the nation got the urge -- with urban development grants from Uncle Sam -- to tear down older sections of town and encourage land developers to rebuild on the confiscated land.

Property owners in these targeted areas, however, often refused to sell.

And since urban renewal did not fall under the traditional eminent domain definition of “public use,” a few stubborn owners could stop a town’s urban renewal mania in its tracks.

Then, in 1954, by changing the long standing requirement for “public use” to one of “public purpose,” the Supreme Court, in effect, rewrote this part of the Constitution.

To exercise eminent domain powers, local governments no longer had to show the land would be used for a bona fide public use.

Governments could take private property by simply declaring that the plans for the property serves a “public purpose.”

It no longer mattered that the land the government forcefully [took] from private citizens [ended] up in the hands of private land developers.

According to Berliner, “State and local governments took this [court action] as a green light. First they condemned slums, then blighted areas, then not very blighted areas, and now, perfectly fine areas … that happen to appeal to local bureaucrats who are hungry for dollars.”

The report lists hundreds of eminent domain abuse cases between 1998 and 2002 in all 50 states and goes on to say, “News reports revealed no reported condemnations for private parties in New Hampshire between 1998 and 2002. This admirable restraint probably results in part from a decision of the New Hampshire Supreme Court in 1980 holding that New Hampshire’s Constitution did not allow condemnations for economic development, that is, local governments could not take land for private businesses on the premise that the businesses would create jobs and pay taxes.”

The report cites hundreds of cases in other states where local governments have taken land from ordinary citizens and transferred it to private developers so they could build casinos, luxury condos, private office buildings and beach side resorts.

The good news, according to the coalition, is that threatened land owners are able, if they act in time, to fend off abusive governments.

At its website http://www.CastleCoalition.org, landowners will find a lot of practical advice.

For example, the “Eminent Domain Abuse Survival Guide” lists early warning signs that a landowner is being targeted -- and what steps should be taken to defend one’s property.

The Founding Fathers believed the duty of government was to protect the rights of property owners, not prey on them.

Officials in New Hampshire should continue to respect the original intent of the U.S. Constitution, and make sure public officials do not use their eminent domain powers as a corporate welfare subsidy for politically favored businesses.

Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. He can be reached at: fraserr@erols.com

Copyright 2004 The Union Leader

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