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Protecting Property Rights in a Landslide

Voters in nine states pass measures to curb eminent domain abuse

Leonard Gilroy
November 8, 2006

Besides Democrats, and anyone hoping for gridlock in Washington, the big midterm winners were homeowners in the nine states that passed initiatives protecting property rights and reigning in government's power to take homes and businesses.

These initiatives were sparked by the Supreme Court's controversial ruling in the Kelo vs. New London decision last summer, which gave the government a green light to use eminent domain to take private property and turn it over to developers for "economic development" purposes.

Most Americans were rightfully incensed at the notion that government could arbitrarily evict people from their homes, businesses, and churches simply because it could generate more local tax revenue if these properties were redeveloped as condos, offices, and hotels. Traditionally, eminent domain was only used to acquire private land for clearly defined public uses—such as roads, parks, and public buildings´┐Żbut Kelo opened the door for government to condemn property for almost anything that it could argue had a public "benefit."

The backlash was immediate. In the year since the Kelo ruling, over two dozen states passed legislation to curb eminent domain abuse, and on Tuesday, voters passed a variety of measures intended to do the same thing.

An overwhelming majority of voters in Florida, Georgia, Michigan, New Hampshire, and South Carolina approved constitutional amendments that forbid the use of eminent domain to transfer land from one private party to another for economic development purposes, as did Louisiana voters last month. Similar voter-initiated constitutional amendments passed in both North Dakota and Nevada, though Nevadans will need to pass the same amendment in 2008 for it to take effect.

Of all states, voters in Oregon have taken one of the strongest stands in recent years to protect their property rights. Measure 39, a statutory initiative that reigns in eminent domain abuse, passed yesterday by more than a two-thirds margin. Moreover, Measure 39 followed on the heels of voters' passage of Measure 37 in 2004, which was designed to protect Oregonians from "regulatory takings," a far more pervasive threat to private property rights than eminent domain abuse.

Local governments routinely pass restrictions on the ability of property owners to use their land in ways legal at the time they bought their property—resulting in enormous losses to private property values—without compensating owners for these impacts. After several decades enduring egregious regulatory abuse, Oregonians passed Measure 37 to require government to either pay landowners for these "regulatory takings," or waive the regulations.

Voters in Arizona followed Oregon's lead Tuesday and passed Proposition 207—the Private Property Rights Protection Act—by a 65-35 margin, breaking new ground in the process. Prop 207 was designed to address both eminent domain abuse and regulatory takings in one comprehensive set of property rights protections in what has come to be known as a "Kelo-Plus" initiative. Untested prior to this election, the passage of Prop 207 establishes "Kelo-Plus" as a feasible strategy to target the two biggest threats to property rights in one fell swoop.

However, two similar "Kelo-Plus" measures failed to pass. Despite garnering over 3 million votes, California's Proposition 90 was defeated by a 52 to 48 margin. Idaho's Proposition 2 also failed to pass. Opponents of these measures—including environmental groups, municipal associations, and urban planners—mounted a vigorous campaign to defeat them, outspending measure proponents by a wide margin. Voters in Washington state also defeated Initiative 933—a regulatory takings measure modeled after Oregon's Measure 37—by a 56-44 percent margin.

Despite the success in Arizona and Oregon, the defeat of the California, Idaho, and Washington measures indicates that regulatory takings reform faces higher hurdles to voter appeal than pure eminent domain measures. Not only do they generate more opposition from a variety of special interests that benefit from government's unfettered ability to regulate, but the issue is inherently complex and largely unfamiliar to voters.

And given that regulatory takings frequently occur in conjunction with zoning regulations preventing development on agricultural land or open space, the issue resonates more with rural voters than city dwellers, as the geographic breakdown of voting for California's Prop 90 suggests. Support for Prop 90 was strongest in the Central Valley, the Northeast, and Southern California, while opposition centered in the Bay Area and Los Angeles County. The key for future campaigns will be to craft a message that more effectively connects with urban voters.

However, viewed in total, the results of yesterday's election indicate that the property rights movement is alive and well. Millions of citizens nationwide sent a clear message to elected officials: they care very deeply about property ownership, and they're willing to go to the ballot box to protect their rights.

The concept of private ownership of real property is a fundamental part of our society and one of the core freedoms that our country and economy is built on. As the election showed, Americans increasingly understand that the government is there to protect the right to that property, not to take it away.

Leonard Gilroy is a certified planner and policy analyst at the Reason Foundation. An archive of his work is here. Reason's eminent domain research and commentary is here.


Leonard Gilroy is Director of Government Reform


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