City Club Reports: No on Measure 39

I've told this story here briefly once before: I joined Portland's venerable City Club earlier this summer in order to participate on a ballot study committee. The details are irritating to me, but I did not end up serving on one. I did have one initially assigned to me however, for Measure 39 concerning eminent domain. I was actually kind of bummed at the time--I was desperately hoping for term limits or TABOR--because I figured this would be a no-brainer Yes, even though I sensed I was probably opposed to it. (Interestingly, I theoretically might have been offered a spot on the M43 committee--parental notification--but my testicles literally got in the way; they didn't like the sound of a nearly all-male committee deciding on abortion law. That wasn't irritating, just weird).

So given what some might call my sour grapes bias, imagine my surprise to see a unanimous recommendation for a No vote on M39. I wasn't needed, apparently, and now it seems lucky I didn't spend the time. I figured out what a crappy bill it was on my own, and my No vote would have added nothing. I quite enjoyed reading the club's report rather than writing it, and I suggest you take a gander at it as well {pdf}. This is one of five committee reports currently completed; M39 has been voted on by the full membership, and while the vote is not on their site yet, I have to assume the full house accepted the recommendation. Agree or don't with their conclusions, but the reports are generally well-written and do a thorough job of cataloguing the issues.

So that we're clear on what's being discussed here, some background:

Eminent domain is the power of government to take private property for public use. The United States and Oregon constitutions allow public bodies to condemn private real property for a public use and require compensation be paid to the property owner. Oregon statutes permit the owner to challenge the amount of compensation in court. Generally, the compensation paid must reflect the actual fair market value of the property at the time of condemnation.

Conversely, the U.S. and Oregon Constitutions do not allow governments to take property to confer wealth on a particular private party. A purely private taking could not withstand the scrutiny of the public use requirement. Because it would serve no legitimate purpose of government, it would be void.

Traditionally, eminent domain has been used to acquire land for such direct public uses as roads, public buildings (e.g., courthouses) and parks. While there has been debate over whether the methodology for determining “just compensation” adequately compensates property owners in these situations, few people question the government’s power to acquire private property for these direct public uses.

I'm not trying to condescend to our extremely sharp readership, but the idea of eminent domain abuse seems like just so much faddish outrage sparked, as the report notes, by Kelo v New London. The truth is that fairly wide berth has long been given to government for appropriation in the public interest, legally speaking.

At best the notion of restricting it is left to the states, which does make M39 a legitimate subject matter to legislate. But in concept, we're like the woman who, it is told, was given an "indecent proposal" by a drunk Winston Churchill. Given the amount of lucre at stake, she discreetly accepted, whereupon the old sot cut his price to 10 pounds. The woman slapped him and exclaimed, "what kind of woman do you think I am?" Churchill bobbed and weaved about, but noted "I thought we'd established what kind of woman you are, and were simply haggling on price." That's really all that's behind Oregonians in Action and the people who vote for these kinds of knee-jerk property rights laws--they primarily want to get paid.

The committee recognized this:

For voters, a decision on an issue such as Measure 39 can lend itself to an emotional reaction. In fact, the proponents of Measure 39 promote a visceral response, referring to their initiative as the “Government Can’t Steal My Property And Give It To A Developer Act.” Your committee notes that under current law the owner of condemned property is entitled to compensation based on the property’s current market value, which is difficult to view as “stealing.”

And so the money quote, as they say:

Proponents of the measure tend to be inherently suspicious of the power of government and dubious of governments’ abilities to plan better communities than market forces will create. Opponents of the measure tend to view government as a benign force that plays a necessary role in guiding development more productively than would market forces left to their own devices.

While the existing eminent domain process in Oregon appears to have some shortcomings, your committee concludes that Measure 39 is not a reasonable solution. Addressing the shortcomings requires a more targeted approach than Measure 39’s nearly complete prohibition on the use of eminent domain to transfer property to a private party.

While Measure 39 would undoubtedly put landowners on a better footing for dealing with public agencies interested in their property, it reaches too far in limiting government agencies’ condemnation power. Measure 39 would have consequences that impede the legitimate interests of a larger society. A better approach would be to reform Oregon law to ensure that compensation paid to property owners whose land is taken is fair. This should be done in the Oregon Legislature, where a bill can be carefully crafted to address the complexities of the issue.

City Club knows what property rights advocates are, and now their recommendation is to haggle on price.

Vote No on M39.