Posted on 08/03/2005 12:26:42 PM PDT by smoothsailing
WEDNESDAY, AUGUST 03, 2005
Needed work on eminent domain
While South Carolina's property rights protections are better than most states', Gov. Mark Sanford and key legislative leaders made it clear Tuesday they recognize there are areas of state law that need work. At the top of the list should be a reduction in the number of public bodies that have the power of eminent domain.
The press conference, which included Speaker of the House Bobby Harrell and Senate President Pro Tempore Glenn McConnell, was designed to assure inquiring citizens that the state's leadership is committed to strong protections in the wake of a shocking U.S. Supreme Court decision earlier this summer. In a Connecticut case, the high court upheld that state's law giving local government a virtually unrestricted right to enhance its tax base by allowing a redeveloper to take private property for private gain.
While legal experts generally agree that the S.C. Constitution and S.C. Supreme Court rulings are good insurance against a repeat of that draconian ruling in this state, the governor's office and a number of lawmakers have expressed concerns that our laws aren't as tough as they could be. According to the governor's statement, he is interested in limiting the number of government entities that can use the power of eminent domain, a more succinct definition of the term "public use" and "tightening the definition of what constitutes a 'blighted area.' "
The latter is one of the oddest portions of the state law. For the most part, local governments can't turn private property over to redevelopers. But several decades ago, six counties were given the power, through constitutional amendments, to do just that if they declare the area in question "blighted." It's unclear how those six got on the ballot, particularly since several are small, rural counties, while the others are more urban. It's definitely an area worth exploring, particularly when it comes to refining the definition of "blighted."
None of the areas mentioned needs a closer look than government or public agencies -- which number well into the hundreds -- that have been given the power of eminent domain over the years. Now, according to a member of the governor's legal staff, all the state's public colleges have that power. So do special purpose districts, airport commissions, redevelopment authorities and public utilities, including those that supply water, sewer and natural gas.
A just-released study by the S.C. Policy Council on private property rights in the state cites among the council's numerous concerns the broad eminent domain authority that's been granted. "The state code of law goes further than the state Constitution in explaining who can use eminent domain powers, and to what end. Any state level department or authority that has responsibility in the realm of waterways, power, land drainage, or more generally in the 'improvement of health' is authorized to employ eminent domain," the study reports. Accountability is the chief problem since many of those who are given that power aren't directly answerable to publicly elected officials. Indeed, some, such as the St. John's Water Co. on Johns Island, aren't even indirectly accountable to public officials.
The Policy Council's researcher sounds one of greatest alarms we've heard to date on the implications of the U.S. Supreme Court decision on this state. The study states:
"Placing our long term faith and hope in South Carolina's State Supreme Court is not enough. It is essential that South Carolina's Constitution clearly articulate stronger protections for property owners, rather than depending on the court to consistently paint them in such a manner. This means clarification of 'blight,' the further reining in of eminent domain powers, a more singular articulation of public 'use' and 'purpose,' as well as a rethinking of just compensation for those cases when it is absolutely necessary to employ eminent domain."
To date, S.C. Supreme Court rulings have been the greatest restraint against the misuse of the power of eminent domain. But the Policy Council report correctly notes that those precedents are subject to change, particularly when, as the governor observes, there are areas of the law that need to be shored up. The U.S. Supreme Court ruling has made the awesome power of eminent domain a renewed area of intense public concern and it's getting the attention it deserves from state leaders.
This article was printed via the web on 8/3/2005 3:14:24 PM . This article appeared in The Post and Courier and updated online at Charleston.net on Wednesday, August 03, 2005.
When lawyers write the laws they build in litigation into every bit of wording. It is called job security in legalese.
The rest of the world would call it conflict of interest.
It is the REAL us and them in this country, and we've fallen for it wholesale. . . .
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