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What is Eminent Domain? <ul><li>The power of eminent domain allows governments to take property if it is needed for a publ...
Kelo  v. New London : <ul><li>  </li></ul><ul><li>Facts of the Case  </li></ul><ul><li>New London , a city in Connecticut,...
<ul><li>The property owners argued the city violated the Fifth Amendment's takings clause, which guaranteed the government...
Question Presented  <ul><li>…  to clear private property for  private  urban development:  Conn. S.C.- sides with New Lond...
Da Fif?  (Fifth Amendment to the US  Constitution) <ul><li>Article [V.]  No person shall be held to answer for a capital, ...
James Madison Observed: <ul><li>The Dilemma: The Government Must Have Enough Power To Control The People But Then, How Do ...
House Bill 1313 The Landowner’s Bill of Rights and Private Property Act <ul><li>In 2005 the Us Supreme Court decided that ...
How has the law changed? HB 1313 <ul><li>House Bill 1313 does the following: </li></ul><ul><ul><li>Takes the power of emin...
How has the law changed? HR 1306 <ul><li>House Resolution 1306 is a Constitutional Amendment that compliments HB 1313 by <...
What is Blight? <ul><li>We’ve all seen blight, but the legislature wanted to ensure that there was no doubt in any local g...
 
Blight is land that is: Unsafe or uninhabitable A source of imminent harm due to a natural disaster  or an emergency situa...
What is a public use? <ul><li>What a surprise to find that “public use” is mentioned throughout our laws, but never define...
Clearing  Blight  Quieting  Title For use by Governments or  People for their enjoyment Power  Lines NOT  economic develop...
Does HB 1313 eliminate the power of eminent domain? <ul><li>No </li></ul><ul><li>Lawmakers recognize that eminent domain i...
How does HB 1313 protect property owners? <ul><li>HB 1313 ensures that property owners who have their property condemned w...
For Eminent Domain? <ul><li>Areas of High Crime </li></ul><ul><li>Known areas for drug dealing, trafficking, prostitution,...
<ul><li>“ We have taken a giant leap in the right direction.  I look forward to continuing to work…to protect the private ...
<ul><li>The Importance Of Property Rights </li></ul><ul><li>In John Locke’s Second Treatise of Government (1689), chapter ...
<ul><li>“ [A]s different degrees of industry were apt to give men possessions in different proportions, so this invention ...
<ul><li>The French philosopher Montesquieu observed: </li></ul><ul><li>“ Nature is just to all mankind; she rewards them f...
<ul><li>Jeremy Bentham (1748-1832), one of the fathers of the moral philosophy called “Utilitarianism”, called the law tha...
<ul><li>“The first and chief design of every system of government is to maintain justice: to prevent the members of societ...
<ul><li>John Rutledge: &quot;Property was certainly the principal object of Society.&quot;  [9]  Alexander Hamilton: &quot...
<ul><li>&quot;The right of property,&quot; Arthur Lee of Virginia declared, &quot;is the guardian of every other right, an...
<ul><li>The Magna Carta </li></ul><ul><li>The British Library tells us: </li></ul><ul><li>“ Magna Carta is often thought o...
<ul><li>The English Common Law Regarding Eminent Domain </li></ul><ul><li>“ Blackstone agreed that the legislature could t...
<ul><li>Jefferson Borrowed from John Locke </li></ul><ul><li>&quot;Jefferson borrowed heavily from the compact theory of J...
<ul><li>What Did Jefferson Mean By “The Pursuit Of Happiness?”  Jefferson also said:  </li></ul><ul><li>&quot;With all the...
<ul><li>Article [IV.]  The right of the people to be secure in their persons, houses, papers, and effects, against unreaso...
What Did The Framers Of The Constitution Specifically Do To Protect Property Rights?   <ul><li>Although the 5th Amendment’...
<ul><li>In addition to all of the foregoing, the 5th Amendment prohibited the federal government from taking private prope...
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Eminent Domain

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Eminent Domain

  1. 2. What is Eminent Domain? <ul><li>The power of eminent domain allows governments to take property if it is needed for a public use </li></ul><ul><li>This includes power lines, sewers, roads and other such takings </li></ul><ul><li>This does not include taking land for private economic development, or does it? </li></ul>
  2. 3. Kelo v. New London : <ul><li>  </li></ul><ul><li>Facts of the Case </li></ul><ul><li>New London , a city in Connecticut, used its eminent domain authority to seize private property to sell to private developers. The city said developing the land would create jobs and increase tax revenues. Susette Kelo and others whose property was seized sued New London in state court. </li></ul>
  3. 4. <ul><li>The property owners argued the city violated the Fifth Amendment's takings clause, which guaranteed the government will not take private property for public use without just compensation. Specifically the property owners argued taking private property to sell to private developers was not public use . </li></ul>
  4. 5. Question Presented <ul><li>… to clear private property for private urban development: Conn. S.C.- sides with New London in order to improve the local economy </li></ul><ul><li>  </li></ul><ul><li>Does a city violate the Fifth Amendment's takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city's bad economy? </li></ul>
  5. 6. Da Fif? (Fifth Amendment to the US Constitution) <ul><li>Article [V.] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. </li></ul>
  6. 7. James Madison Observed: <ul><li>The Dilemma: The Government Must Have Enough Power To Control The People But Then, How Do We Make It Control Itself? </li></ul><ul><li>“ What is government itself, but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” [51] </li></ul>
  7. 8. House Bill 1313 The Landowner’s Bill of Rights and Private Property Act <ul><li>In 2005 the Us Supreme Court decided that taking private property for a private use was o.k. </li></ul><ul><li>State Supreme Courts can interpret the law as applied to specific cases in their state </li></ul>
  8. 9. How has the law changed? HB 1313 <ul><li>House Bill 1313 does the following: </li></ul><ul><ul><li>Takes the power of eminent domain away from quasi-governmental Authorities. </li></ul></ul><ul><ul><li>Allows only local city and county elected officials the power to authorize the use of eminent domain. </li></ul></ul><ul><ul><li>Provides that governments may only condemn individual properties rather than large areas. This protects land and homes that are not “blighted.” </li></ul></ul><ul><ul><li>Defines “Public Use” and “Blight” </li></ul></ul>
  9. 10. How has the law changed? HR 1306 <ul><li>House Resolution 1306 is a Constitutional Amendment that compliments HB 1313 by </li></ul><ul><ul><li>Only allowing the use of eminent domain for a public use – as that term is defined by law </li></ul></ul><ul><ul><li>Requiring that the use of eminent domain by a non-elected authority be first approved by the elected officials of the city or the county </li></ul></ul>
  10. 11. What is Blight? <ul><li>We’ve all seen blight, but the legislature wanted to ensure that there was no doubt in any local government’s mind as to what is blight and what is not </li></ul>
  11. 13. Blight is land that is: Unsafe or uninhabitable A source of imminent harm due to a natural disaster or an emergency situation An environmental hazard Maintained below code over a long period of time
  12. 14. What is a public use? <ul><li>What a surprise to find that “public use” is mentioned throughout our laws, but never defined. </li></ul><ul><li>HB 1313 defines Public Use to ensure that private property taken through eminent domain is used for the good of the whole community not just a few lucky people. </li></ul>
  13. 15. Clearing Blight Quieting Title For use by Governments or People for their enjoyment Power Lines NOT economic development Roads Public Use
  14. 16. Does HB 1313 eliminate the power of eminent domain? <ul><li>No </li></ul><ul><li>Lawmakers recognize that eminent domain is a powerful tool that governments should use only as a last resort </li></ul><ul><li>HB 1313 ensures that if governments must use eminent domain that property owners are protected </li></ul>
  15. 17. How does HB 1313 protect property owners? <ul><li>HB 1313 ensures that property owners who have their property condemned will: </li></ul><ul><ul><li>receive notice of the condemnation in a timely manner </li></ul></ul><ul><ul><li>have the right to a jury trial if they dispute that the taking is for a public use </li></ul></ul>
  16. 18. For Eminent Domain? <ul><li>Areas of High Crime </li></ul><ul><li>Known areas for drug dealing, trafficking, prostitution, any other socially considered “ills” </li></ul><ul><li>Eye sores, un-maintained buildings/ fields, trash dumps, etc… </li></ul><ul><li>Areas that could impose any physical threat </li></ul><ul><li>Reasons provided by specific court cases as just cause for taking private property (Conn. and L.B.) </li></ul>
  17. 19. <ul><li>“ We have taken a giant leap in the right direction. I look forward to continuing to work…to protect the private property rights of our citizens.” </li></ul><ul><li>House Speaker Glenn Richardson </li></ul><ul><li>(R – Hiram) </li></ul>Famous Quotes on the Subject:
  18. 20. <ul><li>The Importance Of Property Rights </li></ul><ul><li>In John Locke’s Second Treatise of Government (1689), chapter five discusses property.  He said </li></ul><ul><li>“ every man has a property in his own person.  This nobody has a right to but himself. The labor of his body, and the works of his hands, we may say, are properly his.  Whatsoever then he removes out of the state of nature... [and] mixes his labor with...makes it his property.” [1] [For example, planting and harvesting grain, catching fish or game, etc.]   </li></ul><ul><li>“ God, by commanding to subdue, gave authority so far to appropriate.  And the condition of humane life, which requires labor and materials to work on, necessarily introduces private possessions.” [2] </li></ul>
  19. 21. <ul><li>“ [A]s different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them.” [3] </li></ul>
  20. 22. <ul><li>The French philosopher Montesquieu observed: </li></ul><ul><li>“ Nature is just to all mankind; she rewards them for their industry, whilst she renders them industrious by annexing rewards in proportion to the greatness of their labor.  But if an arbitrary power deprives people of the recompenses of nature, they fall into a disrelish of industry, and then indolence and inaction seem to be their only happiness.” [5] </li></ul>
  21. 23. <ul><li>Jeremy Bentham (1748-1832), one of the fathers of the moral philosophy called “Utilitarianism”, called the law that secures property rights “the noblest triumph of humanity over itself.” [7] </li></ul>
  22. 24. <ul><li>“The first and chief design of every system of government is to maintain justice: to prevent the members of society from encroaching on one another’s property, or seizing what is not their own.  The design here is to give each one the secure and peaceable possession of his own property.” [8] </li></ul>
  23. 25. <ul><li>John Rutledge: &quot;Property was certainly the principal object of Society.&quot; [9] Alexander Hamilton: &quot;One great objt. of Govt. is personal protection of the security of property.&quot; [10] </li></ul><ul><li>John Adams: &quot;Property must be secured or liberty cannot exist.&quot; [11] </li></ul>
  24. 26. <ul><li>&quot;The right of property,&quot; Arthur Lee of Virginia declared, &quot;is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.&quot; [12] In a letter published on April 7, 1774 in the London Gazetteer, which sought to explain to the British the reasons for the Boston Tea Party, the unknown author said: </li></ul><ul><li>“ ...for the end of Government is the preservation of property, and there can be no property where there is an arbitrary power of taxation...[T]he law of nature, being founded in reason and justice, admits of property; for the better preservation of which, and for the use and enjoyment of it in peace and quiet, men entered into society.  If therefore, any man, or body of men, claim a right to take away at pleasure from other men their property, and to dispose of it as they please[,] such claim tends to a dissolution of society, and is repugnant also to the law of nature, as it would place mankind in a worse condition than the state of nature, wherein they had liberty to defend their right against the injuries of others.” [13] </li></ul>
  25. 27. <ul><li>The Magna Carta </li></ul><ul><li>The British Library tells us: </li></ul><ul><li>“ Magna Carta is often thought of as the corner-stone of liberty and the chief defence against arbitrary and unjust rule in England. In fact it contains few sweeping statements of principle, but is a series of concessions wrung from the unwilling King John by his rebellious barons in 1215. However, Magna Carta established for the first time a very significant constitutional principle, namely that the power of the king could be limited by a written grant.   </li></ul><ul><li>“ King John's unsuccessful attempts to defend his dominions in Normandy and much of western France led to oppressive demands on his subjects. Taxes were extortionate; reprisals against defaulters were ruthless, and John's administration of justice was considered capricious. In January 1215 a group of barons demanded a charter of liberties as a safeguard against the King's arbitrary behaviour. The barons took up arms against John and captured London in May 1215. </li></ul><ul><li>“ By 10 June both parties met and held negotiations at Runnymede, a meadow by the River Thames. The concessions made by King John were outlined in a document known as the 'Articles of the Barons', to which the King's great seal was attached, and on 19 June the barons renewed their oaths of allegiance to the King. Meanwhile the royal chancery produced a formal royal grant, based on the agreements reached at Runnymede, which became known as Magna Carta (Latin for the 'Great Charter').” [14] </li></ul>
  26. 28. <ul><li>The English Common Law Regarding Eminent Domain </li></ul><ul><li>“ Blackstone agreed that the legislature could take private property but insisted that the owner was entitled to receive ‘a full indemnification and equivalent for the injury thereby sustained.’  He regarded compensation as an established common law principle.” [18] </li></ul><ul><li>“ In addition to constitutional guarantees of property rights, most of the states expressly adopted English common law, unless repugnant to the state constitution or unsuitable to the American conditions, as the basis for jurisprudence.  This important step minimized legal upheaval and ensured that continuity would be the hallmark of postrevolutionary administration of justice.” [19] </li></ul>
  27. 29. <ul><li>Jefferson Borrowed from John Locke </li></ul><ul><li>&quot;Jefferson borrowed heavily from the compact theory of John Locke.  Locke used the expression 'life, liberty, and estates' to describe the natural rights that government was formed to protect.  Jefferson, however, substituted the phrase 'pursuit of happiness' for 'estates,' a change that should not be understood as rejecting the emphasis on property rights in revolutionary ideology.  The concept of happiness as an end of government was widely accepted in the eighteenth century and was generally equated with economic opportunity.  As Willi Paul Adams noted, 'The acquisition of property and the pursuit of happiness were so closely connected with each other in the minds of the founding generation that naming only one of the two sufficed to evoke both.'  The right to obtain and possess property was at the heart of the pursuit of happiness.  Still, Jefferson's formulation was significant because it stressed the importance of acquiring property rather than just the protection of existing property arrangements.&quot; [24] </li></ul>
  28. 30. <ul><li>What Did Jefferson Mean By “The Pursuit Of Happiness?” Jefferson also said: </li></ul><ul><li>&quot;With all these blessings, what more is necessary to make us a happy and prosperous people?  Still one thing, fellow citizens--a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.&quot; [48] &quot;To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.&quot; [49] </li></ul><ul><li>&quot;If we can prevent the government from wasting the labors of the people, under the pretense of taking care of them, they must become happy.&quot; [50]   </li></ul>
  29. 31. <ul><li>Article [IV.] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. </li></ul>
  30. 32. What Did The Framers Of The Constitution Specifically Do To Protect Property Rights? <ul><li>Although the 5th Amendment’s prohibition against the federal government depriving people of “life, liberty or property without due process of law” was originally thought of as simply a procedural mechanism to ensure fair judicial processes, it was later used by the Court to protect property rights indirectly by the Court’s overseeing the inherent fairness or justice of federal legislation.  </li></ul>
  31. 33. <ul><li>In addition to all of the foregoing, the 5th Amendment prohibited the federal government from taking private property without giving just compensation in return.  This too, was obviously designed to protect property rights. </li></ul>

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