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Fischer: Utah a model for responsible use of eminent domain

By Jen Fischer - Special to the Standard-Examiner | Apr 7, 2023

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Jen Fischer

In opposition to an excise tax on cider, William Pitt, the 1st Earl of Chatham, stated, “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!” In other words (John Adams’ words to be precise), “Property is surely a right of mankind as well as liberty.” What both of these gentlemen failed to add was … with the exception of properties taken by the government through the law of eminent domain.

According the National Association of Realtors, eminent domain refers to “the process by which the government may seize private property with proper compensation, but without the owner’s consent.” The Fifth Amendment to the Constitution stipulates that the property cannot be taken without “just compensation,” and the property must be claimed for “public use.” Thus the use and purpose of eminent domain is to improve communities and provide benefits for the public.

On a local level, UDOT (Utah Department of Transportation) has been the largest user of eminent domain. Between 700-1,000 properties a year between the years 2017-2019 have been purchased for the purpose of expanding highways. Nearly 95% of these properties were acquired without legal action. Most of those properties acquired were legitimately needed to expand and grow our state. So many people coming to Utah to enjoy all our pretty, great state has to offer, yet so few places to put them all.

While Utah has been both deliberate and sagacious with its use of eminent domain, some states have been far more liberal with this “right.” In fact, some state governments have defined “providing public benefit” as more of a prioritization of corporate interests in the name of “economic development.”

In the 2005 court case of Kelo v. New London, one of the most publicized and despised rulings in Supreme Court history regarding the abuse of this power of eminent domain, this was blatantly the case.

Susette Kelo was a hardworking emergency paramedic. She had purchased her dream home, an 1893 waterfront cottage in the small city of New London, Connecticut. This little pink house was a culmination of all her blood, sweat and tears. This home held so much more meaning to her than a roof with four walls. For Susette, a cold wad of cash would be no compensation for all she had gone through to achieve her dream.

When informed that she was being forced from her home for “fair compensation” in the name of redevelopment under the guise of providing space for businesses, jobs and more tax money, Kelo sued. Sadly, she lost. As a result, the court essentially expanded power of eminent domain to a broader government-defined “public purpose,” including giving the seized property to a private party. This was the case with Kelo’s home. Ultimately, the property was taken by the New London Development Corp. and sold to Pfizer, one of the big pharmaceutical companies with deep pockets and, apparently, deeper government control. Coincidently, Pfizer did not end up building their corporate structures there as planned.

Kelo’s home was purchased by a property rights activist and moved frame by frame to a new neighborhood. Although Kelo lost the battle, she may have won the war. As a result of the blood-boiling court decision, the case sparked nationwide outrage in arbitrary government power. Many states have subsequently reshaped the law.

Fortunately and uniquely, Utah provides a free service through the Office of the Property Rights Ombudsman to safeguard Utah property rights. No wonder Utah remains a pretty, great state.

Jen Fischer is an associate broker and Realtor. She can be reached at 801-645-2134 or jen@jen-fischer.com.

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