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July 19th 2005 • Printer version
of Measure 37
Keith Aoki
Thursday, July 14, 2005, The Oregonian
In a world of rich and poor, there is private property and then there is private
property.
The U.S. Supreme Court's decision earlier this month upholding broad
powers of local governments to condemn private property (Kelo v. City
of New London) makes for some strange bedfellows: Activists on the left
attacked the decision as a blow to the struggles of communities of
color trying to battle environmental racism; activists on the right
criticized the decision for eroding the inviolability of private
property rights.
But what might these strange bedfellows tell us about property rights in terms
of our own Measure 37 here in Oregon?
Susette Kelo was a sympathetic plaintiff, a middle-class woman who
owned a home in a working-class neighborhood that New London wanted to
condemn, bulldoze and redevelop into an office park/marina for the
anchor tenant, the drug giant Pfizer. But a five-person majority of the
Supreme Court deferred to New London's determination that condemning
Kelo's nonblighted neighborhood was for a constitutionally suitable
"public use" ó that is, increasing the city's tax base.
The court's "we're sorry for Susette-Kelo-but-that's-the-way the
economic-development -cookie-crumbles" opinion concluded that no more searching
inquiry of what processes went
on behind the scenes is required by the Constitution.
The Kelo dissent by retiring Justice Sandra Day O'Connor, on the other
hand, eloquently raises the issue of how poor and rich people will be
treated differently by cities wielding the power of condemnation:
"Nothing is to prevent the state from replacing any Motel 6 with a
Ritz-Carlton, any home with a shopping mall, or any farm with a
factory."
In his own dissent, Justice Clarence Thomas underlined that
poor people ó many of whom are persons and communities of color ó
will be the most likely to lose their homes under the ruling,
particularly when the wealthy and powerful capture City Hall.
The ruling shows how property rights and the exercise of corporate
power may be diametrically opposed. In terms of the rhetoric
surrounding Measure 37 in Oregon, Dorothy English's anguish at not
being able to build a house on her Portland West Hills property may not
be consonant with Wal-Mart's desire for a box store or a developer's
yen to create a large subdivision.
Kelo's desire to hold out and not sell her property is a perfect
example of how the assertion of individual private property rights may
be a shield from bullying abuses of both public and private power.
Pfizer undoubtedly thinks that its private property rights entitle it
to build its office park whenever and wherever it wants, as long as it
can pay the price, even if the property owner from whom it wants to buy
doesn't want to sell.
In the same way, the concerns behind Measure 37 are incomplete. While
the measure aims to deal with abuses of public power and requires
compensation for partial "takings" caused by regulation, it would seem
to be unconcerned with abuses of concentrated private power, whether
working through a captive City Hall or through coercive marketplace
behavior.
What of the private property interests of the neighbors of those
granted Measure 37 waivers who find their expectations about the
stability of their property values drastically changed? Or those who
find the level of services delivered by local governments has been
crippled by Measure 37 payouts?
Looked at in this way, Measure 37 seems like just another way the
wealthy and powerful can work the system to their advantage and to the
disadvantage of poor and working people, who fill the tax coffers that
Measure 37 finds a way to empty.
The justices who dissented in the Kelo decision would have checked this
trend, saying that cozy government and business interests would have to
withstand judicial scrutiny.
So, in the end, who is left out in the cold by the Kelo majority and
the incompleteness of Measure 37? Individual private property owners. |
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