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Abuse of Power: How the Government Misuses Eminent Domain

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Your home and business are not safe. Government can grab them at any time using anti-property redevelopment laws, paying you a pittance. Government then can give your property to a private company to develop as a mall or theme park.

That's the frightening story told in "Abuse of Power: How the Government Misuses Eminent Domain," Steven Greenhut's new book.

An editorial writer for six years with The Orange County Register, his articles have saved the property of thousands of homeowners and hundreds of businesses and churches. The total value of property protected must be more than $100 million.

Greenhut describes how, in Garden Grove, Calif., the city wanted to redevelop the land because a theme park would have paid them mountains of dollars in sales taxes, whereas people living happily in their homes pay much less in property tax. Citizens fought, and won. Citizens in other cities weren't so lucky.

More than just a description of assaults on private property, "Abuse of Power" is a guidebook on how to challenge powerful governments and big businesses.

Chapter 18 is "Fighting Back and Winning." It includes chapters describing: "Build Broad Coalitions," "Go On the Offensive," "Be Positive, Not Just Reactive," "Don't Lose Sight of Principles" and "Keep it Simple."

The book ends with lists of organizations and Web sites to help wage the fight and 417 footnotes.

"Abuse of Power" is a manifesto for taking back the right to property ownership. As Greenhut says, property rights are human rights.

As someone who has worked on the other side of the table in eminent domain for government agencies for over 20-years, allow me to unhesitatingly endorse Orange County Register columnist Steven Greenhut's book Abuse of Power: How the Government Misuses Eminent Domain. For this book to be authored by a journalist is unusual because, while it is an expose mainly of the abuses of condemnation, on many aspects it reflects an insider's knowledge of the eminent domain game. Any good journalist knows the formula for writing a popular book -- champion the little guy against big government or large corporations. But Greenhut's book is not just another tale of victimology meant only to make money selling books. There are entire shelves of popular books out there that make out some bug or plant as the victim of development as an excuse to steal someone's property. There are many guidebooks to help government agencies in taking property for redevelopment projects that short change the small property owner because there isn't enough money at stake to hire an attorney or appraiser. There are innumerable regulations that can invisibly transfer the bulk of the value of vacant land for the benefit of others without just compensation. Greenhut's book is an antidote to all the above. It is a highly readable 300 pages with 417 endnotes and a helpful list of resource organizations for property owners. Greenhut is on to something big - really big -- in his book. Government property acquisitions for redevelopment projects are predicated on the buy low - sell high principle to make the project pencil out. Greenhut points out the upsidedown definition of "blight" in redevelopment projects as the absence of something, namely tax-producing commercial development, not the presence of slums or hazardous conditions. Thus blight becomes the absence of what Peter can gain at Paul's expense, not the presence of something owned by Peter that hurts Paul. Conversely, there are abuses by hired gun lawyers and attorneys on behalf of property owners at the expense of the public. But the Constitution was meant to protect the small property owner from the abuses of government. The large property owners, developers, monopoly utility companies, and public agencies have their armies of lawyers and appraisers. The small business owner, vacant land owner, the small church or synagogue, or widow is often left defenseless against the predations of government. But now they have Greenhut and his book. It has taken someone with the coincidental name of Greenhut (green=money; hut=house) to expose the "milk-cow" system of eminent domain that feeds lawyers, appraisers, judges, developers, and monopoly utility companies and railroads at the expense of the property owner -- that is unless they have the wherewithal to fight. This book gives them that wherewithal. Property owners need to read it; government agencies should heed it; attorneys should feed it to their clients; academics need it for their classes; and the media should learn to lead with it.

Author does a fantastic job of documenting cases where city council members and local governments propose a dime on the dollar to take private property in order to allow big business to add taxes to their pockets. No accountability! Small property owners do not generally have the money to hire the right lawyers to fight the system and are often overcome by eminent domain abuses of the local government. Without a lawyer, it is hard to know the law well enough to fight local government abuse of power. Books like this one can highlight what should be a great bipartisan case to protect average citizens like us.

Kelo, et al v New Haven, Conn. will be heard by the Supreme Court this session. New Haven is attempting to condemn a series of properties and LEASE the land to a developer for 99 years at a $1 a year. That is a unique twist. The city will own the land but the developer gets to build and sell the houses and commercial buildings. What makes this even more incredible is that the new owners of the the homes, never own the land. So 20 or 30 years from now the city can take their houses and build something else the "City" deems better use of the land.

A Must Read!!!

This book is powerful, succinct, and full of examples and recent cases. It will blow your mind and hopefully, if you have a soul, it will wrench it. First, you'll see clearly, with in the first chapter, how the government does it so readily and easily and they dupe us as a whole into thinking what they're up to is innocuous. Then you'll see how unjust and un-American it is. Then join me in a battle to preserve our fundamental freedoms.

Fighting the abuse of eminent domain law is an important goal; but that goal will not be well-served by this book. Although the author does an admirable job of summarizing many cases of eminent domain abuse all around the country, his case is severely undermined by extreme right-wing bias, a perfect adherence to the libertarian party line that makes impossible any honest analysis of the legal issues or history surrounding ED. His historical and legal analysis is a shallow, useless mush-- a mush that is 100% in agreement with libertarian dogma, and with the "we all know" conventional thinking of the right--but all that toeing of the party line means that he can't tell the truth about the law or history.

If you want to argue a case in court, and fight the abuse of ED, you'll need to know the real law and history of the USA. Unfortunately, the author's adherence to Ayn Rand's philosophy effectively denies that eminent domain is permitted (but limited) by the US Constitution. He insists that and ANY taking, or even regulating, of property is against the constitution--which is not an honest analysis of US law. Here's reality: whether you like it or not, the founding fathers, in the US Constitution, allowed the government to use eminent domain power--and also put sharp limitations on its use, including "due process", "public use" and "just compensation." Unfortunately, the founding fathers did not precisely define "just compensation" etc., so future generations have to argue about the real meaning of these terms-- and it's certainly true that government officials in many places have abused ED, and dishonestly twisted the meaning of these terms beyond recognition. These facts must be confronted head-on, by addressing what the law really says, what are the real meanings of "public use", "just compensation" etc., and how they can be practically limited to prevent abuse.

Some parts of this book really are interesting--Greenhut's description of how redevelopment agencies are financed, and how Tax Increment Financing (TIF) works, is well-written and important for every taxpayer to know. But the right-wing bias makes any attempt at legal analysis useless.

Greenhut's historical analysis is terrible; he falsely portrays the founding fathers and John Locke as being in perfect agreement with libertarian Ayn Rand's belief in the total inviolability and supremacy of private property. They agree partially, but not totally, and the differences are crucial.

You have to describe describe both sides of a complicated issue honestly, even if you ultimately wind up siding with one side or the other. (That's what Benedict did in his far superior book "Little Pink House", on the Kelo vs. City of New London case. Benedict sides with Kelo, but at least he describes the point of view of the New London City officials honestly, before holding them accountable.)

Instead of realism, the author of this book tries to rewrite US history to make it look like the US Constitution was written by Ayn Rand. It wasn't. He cannot admit that any use of ED was ever legal.

For example, the author presents as an unconstitutional outrage the case "Rindge vs. Los Angeles County" --in which LA County took a small part of a huge ranch to build a highway for the public-- exactly the kind of use of ED law that the founding fathers envisioned and permitted in the Constitution. The author doesn't even tell his readers that the highway in question is now Pacific Coast Highway, used by millions and millions of people every day. That's a hell of an important point to leave out-- but he leaves it out, because that fact would weaken the libertarian case for the supremacy of private property.

He even quotes Ayn Rand to the effect that there is no such thing as a "public", and thus, there is no such thing as a "public good" (p.95)! Well, whether you like it or not, the US constitution does contain the phrase "public use", and starts with "We the people", and this makes Ayn Rand useless for interpreting the US Constitution.

Moreover, the author pushes the right-wing dogma that liberals-are-to-blame-no-matter-what, and buys into Ayn Rand's essential theology--that businessmen are inherently better people than all other people from other professions-- especially government employees, who are uniformly stupid, greedy, subhuman toads. Here is how Greenhut describes one eminent domain case:

"City officals don't care about what they are doing to business owners, given that most of them have spent their lives in government agencies, never having had to meet a payroll or develop a happy clientele of customers themselves."(p.61)

That is not a legal principle on which to argue a case in court. Try telling that to a judge. Or just call gov't officials "dweebish." (Greenhut describes "those dweebish city employees" on p.56.)

The notion that liberals are solely to blame for ED abuse is contradicted by the facts he grudgingly reports, but he keeps pounding away at this theme, page after page. Whenever a liberal fights ED abuse, he tells us again and again it's an exception--don't pay attention to the facts, trust me, liberals are bad people. When GM tried to use ED to take over a neighborhood in Detroit, he grudgingly admits Ralph Nader fought it, but:

"Perhaps because the villain here was General Motors, the fight against the use of eminent domain gained support from liberal activists who typically are uninterested in property rights." (p.118)

"Typically"? Then again, when leftists express outrage about the seizure of Chavez Ravine in Los Angeles, his highly inaccurate and biased reporting again tells us this is just an exception (p.206). On the same page, he quotes liberal Nick Kristof at the New York Times against ED abuse (p.206). On the next page yet another liberal Nader organization fights ED abuse around the country (p.207). But, Greenhut keeps telling us, liberals are to blame; these are mere exceptions... Seems like a lot of exceptions, huh?

Predictably, he follows the right wing party line in comparing ED abuses to those bad people who protect the environment: "In many cases, for instance, laws demanding the preservation of open space, or protecting so-called endangered species, put such strict limits on private-property ownership that land often, in essence, is stolen." (p.9)

Although he uses phrases like "in many cases" and "often" here, he does not describe even a single case nor any evidence of land "stolen" to protect "so-called endangered species." ("so-called"!!?)

Whose property rights is he protecting by opposing environmental protection? Most environmental regulations prevent one person from using his property in such a way as to damage other people's property, their health or their bodies. Most environmental regulations are protecting "property" as John Locke understood it: nothing in natural law gives you the right to damage someone else's health or property. The right-wing party line about environmental "takings" that Greenhut parrots here, is in practice, a bias in favor of corporations against the poor and small property owners. Corporations have the inviolable "right" to damage the property and health of the poor and/or small landowners-- who, in practice, have no equivalent "right."

His historical analysis is terrible. He seriously dumbs down the classical authors (Locke, Madison, Adams) he quotes, misrepresenting their complicated ideas, to make them fit modern-day right-wing talking points. He doesn't describe their words in historical context.

To Greenhut, John Locke simply "argued that property rights are natural human rights." But Locke was much more complicated than that! To Locke, all the bounty of nature was initially commonly owned (yes, communist) and only becomes privately owned after someone works the land--no private property until there is labor--and natural law forbids excess taking that leads to "wastage." Greenhut also doesn't point out to his readers that to Locke, the word "property" meant not just material goods, but also your body, health, safety, and liberty.

When Greenhut quotes John Adams on property rights (p.51), the quote is useless, because he doesn't tell us the context, so we don't know what Adams meant by "property" here (the same as John Locke, or something different?) (Greenhut's citation in the footnote is, again, to a webpage!) He doesn't show other quotes from Adams in which Adams admitted that eminent domain was sometimes necessary, and property may be taken by the legislature in accordance with the law.

Those guys (Adams, Locke) knew there were gray areas in the law and the world is complicated--but Greenhut tries to portray them as in perfect agreement with Ayn Rand-style Liberatarianism.

To read the US constitution as embodying Ayn Rand's moral philosophy is to read into it many things that are not there. This is especially infuriating, because the author follows the right-wing party line by accusing liberals of "judicial activism" (p.87)--in short, he accuses liberals of doing what right wingers like himself are doing in this case.

ED abuse has almost nothing to do with judicial activism--it's instead the result of abuses committed by the legislative branch, and judges deferring to the legislature, which is the opposite of judicial activism-- particularly in the decisions that Greenhut calls unconstitutional (e.g. Rindge vs. Los Angeles County (1923), Berman vs. Parker (1954).)

But Greenhut's logic is: it's bad. Therefore, liberals did it. Because liberals did it, therefore it must be judicial activism.

But it's just the right wing party line that every legal decision they don't like must be due to "liberal judicial activism." But infuriatingly, Greenhut himself embraces right-wing judicial activism when he explains why the Constitution does NOT describe the supremacy of private property rights, the way libertarians would like it; why the Constitution does not spell out Ayn Rand's moral philosophy. He quotes a professor of ethics (!) at Chapman University: "The founders regarded property rights as so basic they didn't think it needed such extensive protections. They thought it was understood." (p.83) Oh, well! So "judicial activism" is only bad when liberals allegedly read into the law things that aren't there-- but when right-wingers read things into the law that aren't there, they tell us, hey, the principles they want are SO FUNDAMENTAL that the founding fathers just FORGOT TO PUT IT IN THERE, trust us!

If you think the US constitution embodies Ayn Rand's moral philsophy, you're doing exactly what right-wingers accuse liberals of: "twisting of the law to advance certain modern concepts in defiance of the Constitution's clear statements." Yes, I also refer to District of Columbia v. Heller, and Chicago v. McDonald, and Bush v. Gore!!

In one sentence he casually blames liberals and THE WORKERS for the demise of Detroit's auto industry (p.117). No evidence provided, just right wing party line. Has Greenhut ever driven a car built in Detroit since the 1980's? He lets off the hook the auto executives who for decades focused on marketing inferior products instead of good engineering, while the Japanese focused on quality.

The author is blinded by the Any Rand-ian theology that rich CEO's are smarter and better than everyone else. The central idea of Rand's writing was the intellectual and moral superiority of the very, very rich.

Most of the outrageous abuses of ED described in this book (and they are real) involve transferring private property to rich corporations, esp. Costco, sports teams, GM and Pfizer. These abuses occur because the right wing has done an excellent job of persuading the American people that the rich are smarter than you and me, that the extremely rich are even smarter than the somewhat rich, and only the rich create jobs. As Fox News put it: "The IRS is announcing a new plan specifically designed to target the rich. Critics are now asking: are those the same `rich' who create the jobs in this country?" (Fox News, April 7, 2010)

If you believe the right-wing ideology that the rich create jobs, and you're a politician who wants more jobs in his district, you'll do anything to please rich corporations, including giving them tax breaks, subsidies and free land taken from other people. The right wing share the blame for the abuse of eminent domain.

i live in Lexington NC and they are using forced annexation to force many hundreds of poor people our of their homes.
Lexingtontruth.com has abuse of power listed as a must read.

The truth is this land is no longer you land.