Court Ruling Fuels Dispute in West Over Eminent Domain

John Revelli holds photographs of the Revelli Tire Co., his family-owned business that dates back to 1949, near the construction at the store's former location in Oakland.   Last February, Oakland city officials used eminent domain to bulldoze the business.
John Revelli holds photographs of the Revelli Tire Co., his family-owned business that dates back to 1949, near the construction at the store's former location in Oakland. Last February, Oakland city officials used eminent domain to bulldoze the business. (By Benjamin Sklar -- Associated Press)

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By Blaine Harden and Juliet Eilperin
Washington Post Staff Writers
Monday, October 2, 2006

SEATTLE -- Libertarians and land developers have found populist fodder in a contentious Supreme Court decision from last year that favors eminent domain over private property.

This fall, they are trying to harness anger over the ruling in an effort to pass state initiatives in the West and federal legislation that could unravel a long-standing fabric of state and local land-use regulations. Among other things, the rules control growth, limit sprawl, ensure open space and protect the environment.

The property-rights movement, as it is known, has a major new benefactor -- Howard Rich, a wealthy libertarian real estate investor from Manhattan. He has spent millions -- estimates run as high as $11 million -- to support initiatives that will appear on ballots throughout much of the West.

The initiatives -- and legislation approved Friday in the House -- have alarmed many city and state officials, along with environmental organizations, budget watchdog groups and smart-growth advocates. They complain about "bait-and-switch" tactics.

"They bait you with eminent domain, but you end up voting to destroy all land-use regulation," said Elaine Clegg, a nonpartisan member of the city council in Boise, Idaho.

Following the lead of an Oregon initiative that in 2004 derailed the nation's strongest laws against sprawl, measures this November aim to do much the same thing in Idaho, Arizona, California and Washington. They would compel state and local governments to pay cash to property owners when land-use rules, such as zoning regulations, reduce the value of their land. Some of the measures say that if government can't pay up, owners can develop their land as they see fit.

In Oregon, there is no money to pay claims that total $5.6 billion, so land-use rules are being waived. In Washington, passage of a "pay-or-waive" initiative could cost state taxpayers $7 billion to $8 billion in the next few years, according to studies by the state and the University of Washington. In California, where there is no provision to waive payment, Proposition 90 has aroused opposition from staunchly conservative groups such as the California Taxpayers Association, which is concerned that the initiative could cost the state billions of dollars, triggering tax increases and slow growth.

The federal bill, which was approved in the House by a vote of 231 to 181, would revamp land-use regulation nationwide, allowing developers and property owners to challenge local and state rulings in federal court, rather than in state court.

The National Association of Home Builders has been pushing the measure for years, but the Supreme Court's eminent-domain decision finally "brought the bill back into the limelight," said Jerry Howard, the association's chief executive.

The bill's author, Rep. Steve Chabot (R-Ohio), who chairs the Judiciary subcommittee on the Constitution, said property-rights disputes that can drag on for years deserve speedy resolution in federal court.

"The Fifth Amendment says you can't take a person's property without due process," he said, comparing property rights with freedom of speech and freedom of religion.

Opponents of the bill, including 36 attorneys general and a slew of environmental advocates, say the measure will undermine state and local governments' ability to oversee growth and preserve open space.


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