Property Rights

Public Good vs. Individual Nightmare

Susette Kelo was a single mother in her 40s when she came across the house of her dreams. It was a small fixer-upper house that she diligently worked on before moving in. Unfortunately, her hopes of a quiet life in her new home beside a river would soon be challenged by the biggest threat of them all: the government.

Ms. Kelo received notice that the City of New London would be using eminent domain to force her off of her property so that they could use the land to build a new facility for the pharmaceutical company Pfizer. But she chose to fight back, leading to a myriad of court battles and growing national publicity as the years went by.

The case eventually reached the U.S. Supreme Court which, to her despair, led to a devastating 5-4 decision in favor of New London in June of 2005. The decision by one government body in favor of another was made because of the potential economic growth and prosperity that Pfizer would potentially bring to the city—specifically, a hoped-for increase in the city’s tax revenue. Essentially, Ms. Kelo lost her house to a private business—who, 12 years later, has yet to build anything on the property.

This Supreme Court decision set a dangerous precedent for the nation, clearing the path for businesses to collude with government to force people off their property.

Americans across the country responded to the Kelo decision by urging their state governments to take action. This led to the Kelo effect: 44 states, including Utah, passed laws that aimed at limiting their state’s eminent domain power. Although this may have potentially helped avoid future government abuse of power, the problem is that it’s hard for the public to know when the government is abusing this power to take property.

Eminent domain is certainly being used in Utah, with a few larger, disputed cases making their way into court. Although some may not be aware of the issue, it is no stranger to the Utah Legislature which has passed no less than 18 bills relating to eminent domain since 2006, a year after the Kelo decision. It is clearly a significant matter, yet it is difficult to track where it is occurring and who is contesting the taking of their property.

Is eminent domain negatively affecting small businesses? Are there homeowners like Kelo who attempt to fight eminent domain, but fail? Are recently passed laws being justly enforced? The answers to these questions are not clear.

Aside from a few individual, publicized cases, little is known about disputes that occur with regard to eminent domain in Utah. Because these takings occur within various different levels and entities of government, gathering this data could take a citizen months, if not years, to obtain one GRAMA request at a time.

The U.S. Civil Rights Commission published a national briefing report on eminent domain in 2014. One of their primary suggestions for state governments was to be transparent about every case of eminent domain attempts and successes. The reason for this is obvious—people and their private property are directly and physically affected by this government policy. But public debate and change can only be facilitated once all the facts about the issue are publicly presented.

Utahns have a right to know how and where their taxpayer money is being spent, and whether that money is being improperly used under the current eminent domain laws. When asked who could use eminent domain, Brent Bateman, Utah Property Rights Ombudsman, told Libertas Institute that “generally, anyone can do eminent domain” as long as it’s “done for a legitimate and legal public purpose.” To increase transparency in Utah, the state needs to make any disputed eminent domain cases public—whether it reaches the court or not.

Local government agencies are already collecting this information. All they would need to do is submit it to the Office of the Property Rights Ombudsman whose job is to help Utahns “understand and protect their rights to property ownership and use.” With adequate funding, this office would be tasked with compiling and presenting the data for public consumption.

When Utahns are given access to this information, they—along with the representatives they elect—will more easily be able to evaluate the perks and problems with the application of eminent domain, and respond in kind with policy reforms where needed.