Proposed Constitutional Amendments: Attack On Your Property Rights And Values

 Proposed Constitutional Amendments: Attack On Your Property Rights And Values
Gary S. Markenson

On Tuesday, the Missouri Secretary of State determined that two constitutional amendments would not be certified for the ballot in November. While proponents of these draconian amendments are likely to challenge this decision, I am hopeful that common sense will prevail and the courts will uphold this ruling. The Secretary of State’s decision is a win for Missouri property owners and taxpayers.

Supporters claim that these amendments will prohibit abuse of eminent domain. Under the slogan “stop eminent domain for private gain,” they argue that the amendments will prevent government from taking your property and giving it to a private developer. Private property rights resonate among Missouri voters. However, on further examination, these proposals go far beyond the claims of their supporters and would in fact destroy Missouri property values by eliminating local property value protections.

Amendment language states that “the right to the useŠor enjoyment of private property shall not be directly or indirectly taken or damaged unlessŠnecessary for a public use and just compensation is rendered”. Note that the reach of these provisions extends even to indirect effects. For over 100 years, local regulations protecting neighborhood property values through reasonable restrictions on private property have been upheld. Now, however, any exercise of land use regulations, nuisance controls or other similar protection which “directly or indirectly” reduces “enjoyment of private property” would give rise to individual claims for compensation. All such claims would be paid for by taxpayer dollars. Under these provisions, then, no local official or agency could afford to protect property values.

As a result, all Missourians would lose the following protections:
€ Zoning controls: No more limits on adult entertainment uses, animal feed lots, junkyards, landfills, etc.;
€ Nuisance regulations: Dangerous buildings, weeds, debris, junked cars, dangerous dogs ­ Good luck neighbors! You are on your own;
€ Building & fire codes: Buyer beware when purchasing a home!
€ Subdivision regulations: Streets, storm sewers, and other “improvements” will be whatever minimum quality a developer is willing to provide.

This wording is no mistake; the out-of-state supporters of these amendments have pushed similar initiatives in other states. In the words of the spokesman for the amendments’ sponsor:

“The ‘taking’ of property must be recognized in all of its forms. Laws and regulations that restrict an otherwise legitimate right to the use, sale, or enjoyment of one’s property (uses that don’t infringe on another’s rights, that is), are “takings”, nonetheless, and should be compensated for. (emphasis original)

These supporters claim that 19th century private nuisance law is adequate to protect the investment in your home and property and wish to limit local protections to “public nuisances, as defined by the Common Law.” This means, however, that, before local officials could take action:

€ First, a court would have to agree that a public nuisance is present;
€ Then, a final judgment would have to be rendered and all appeals would have to be exhausted;
€ And even then, a “reasonable time” after the final judgment would have to elapseŠ

In other words, property owners would have to bear the costs of their own nuisance lawsuits. Even then, more than a year would pass before any relief could be provided.

Think it can’t happen? Take a look at the effects and potential costs to taxpayers of a similar Measure 37 passed in Oregon in 2004 with the support of these same groups (measures so draconian that Oregon voters this past fall all but repealed most of these provisions):

€ One, single claim (not the largest): $850,000 for “lost value from regulations passed after land purchase”
€ Total amounts (to date) from filed claims: $19.8 billion

In most cases, local governments have simply given up and left landowners to their own devices. Consider: Measure 37 in Oregon was limited to land use regulation. Under the amendments proposed for Missouri, there are NO EXCEPTIONS for health and safety regulations or even local criminal laws!

Here, then, are the real results of these amendments:

€ Bad neighbors will turn every local action to protect property values into a condemnation lawsuit (local governments would have to replace code enforcement officials with lawyers!);
€ No local government will be able to afford to protect property values, even if permitted to do so; and
€ To protect their homes and property, owners will have to hire lawyers to prosecute their own private nuisance lawsuits.

Who does all of this benefit? No one, except slumlords and other “bad neighbors!” Look closely at the language of the supporters. Could this be what is really intended? In fact, these radical proposals go far beyond “eminent domain reform.” Instead, under the cloak of reform, we are seeing an out-of-state “stealth attack” on local property values and protections.

Gary Markenson is the Executive Director of the Missouri Municipal League and serves on the Board of Directors of Missourians For Responsible Government.