Eminent domain
Wednesday, September 27, 2006
Keene Sentinel Editorial
To hear some people tell it, you could wake up tomorrow morning to find that government agents had snatched your home overnight and slipped it to a greedy mall developer. Such an unlikely threat is the basis for a constitutional amendment on the November ballot that would forever bar any New Hampshire government from taking land for private purposes. The amendment is one of many similar restrictions being considered around the country in the wake of a U.S. Supreme Court ruling last year that nothing in the federal Constitution could keep a Connecticut city from forcefully acquiring and then turning over nine homes to a private office developer.
The appeal of being safe in one’s home is certainly compelling, but there are good reasons to reject the constitutional initiative in New Hampshire November 7 and leave this matter to the Legislature. They include:
- The record: The last time a New Hampshire government took property by eminent domain for private development purposes was 37 years ago in Portsmouth. The last time the state Supreme Court weighed in on a proposed land-taking for private purposes was more than 20 years ago, and in that case it barred a proposed land-taking for an industrial park because the public economic impact wasn’t convincing. Clearly, there’s no risk of a governmental taking without compelling public interest.
- Community benefit: Many New Hampshire communities can credit at least some of their economic fortunes over the centuries to land-taking for private interests, the railroads being chief among them. As for today, the adoption of the proposed amendment would distinctly limit communities’ flexibility in addressing one pressing socioeconomic problem: The shortage of affordable housing. Under current law, public bodies can take certain kinds of property and then turn them over to private developers to build such housing; that would be barred if the amendment were to pass.
- Changing times: In some parts of the country, communities and states are experimenting with privatizing public services, such as jails, highways and schooling. Such strategies would be far harder, if not impossible, to pursue in New Hampshire if communities were barred from taking land for private use.
If New Hampshire’s laws on eminent domain were inadequate, the reasonable thing to do would be to toughen those laws. The Legislature did just that last spring, by stipulating that qualifying properties be public nuisances, and by spelling out specific criteria by which land can be taken.
That should have been good enough, but then the Legislature insisted on a Constitutional amendment that severely limits the ability of elected representatives to adapt to unforeseen future circumstances and serve the public’s interest through land-taking. The amendment overreaches, would trample an important legislative prerogative, and should be defeated.