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Eminent domain by another name

By Henry Lamb
web posted January 2, 2006

Eminent domain occurs when government takes private property. The Constitution requires that government pay "just compensation" to the owner when eminent domain is exercised.

What do you call it when government takes away the use of private property, but leaves the title in the name of the property owner? The Constitution makes no provision for this function of government, but government is exercising this function with increasing regularity and severity.

The function is called "comprehensive planning;" in reality, it is social engineering.

White County, Georgia is about to adopt a for the "Protection of Mountains and Hillsides," which will severely restrict how private land owners may use their land. If any owner's land happens to slope as much as 25 percent, the owner may not use it at all, unless the lot is at least 1.5 acres. Then, he may disturb no more than 30 percent. If he wishes to build a home, with a driveway, the total "impervious" area may not exceed 20 percent of the land.

This resolution in White County will empower government to take away the use of 70 percent of the land of a private owner. The owner must continue to pay taxes on 100 percent of the property, but may use only 30 percent.

If the land should slope as much as 40 percent, the owner must have at least three acres, and must leave 83 percent of it undisturbed, with no more than five percent (6534 square feet) used for a home and driveway.

Why is government taking away the use of private property? According to the resolution, "To preserve the mountain tops, hillsides, slopes, banks, and ridgelines in as natural a state as possible...; to preserve and protect visually significant rock outcroppings, native plant materials, natural drainage patterns and water courses, and areas of visual significance...." If you own a mountain top, and want to build your home there - forget about it.

Moreover, if the government decides that private land is a "Sensitive Natural Area," it may not be developed at all. A Sensitive Natural Area may be designated if it contains: (1) "Habitat, including nesting sites, occupied by rare or endangered species; (2) Rare or exemplary natural communities; (3) Significant landforms, hydroforms, or geological features; or (4) Other areas so designated by the Department of Natural Resources; and which are sensitive or vulnerable to physical or biological alterations."

If a land owner decides to remove a tree that is eight-inches in diameter, it must be replaced by another tree - approved by the government.

Ownership means "to have power over, to control the use of" property. This White County resolution takes away the "power to control the use of" private property and places this power in the hands of an unelected "Community Development Director or designee." The only difference between this abuse of governmental power, and eminent domain is that the land owner is forced to continue to pay taxes for the privilege of letting someone else dictate how the property may be used - or not used.

There was a time when the term "social engineering" was used to describe a primary feature of communism; it was a term abhorred by Americans. Comprehensive planning is social engineering dressed up in a new name. The White County resolution is a classic example of how comprehensive planning ignores the very principles of freedom upon which this nation was built.

"Government is best when it governs least," is a principle proven through two centuries of development in America. This idea has been abandoned now, in favor of the notion that government knows best how every American should live.

"Government should not interfere in free markets," is another principle that went out the window some time ago. The White County resolution essentially takes control of the real estate market in the affected area. Comprehensive planning, in general, puts government in the driver's seat by virtually controlling the real estate and development market.

The fact is that government - with all its planning professionals - cannot hold a candle to a free market in which individuals, in pursuit of their own interests, forge progress forward. Mistakes are made, to be sure, in a free market, but a free market is self- correcting. A government-planned society is neither self-correcting, nor corrected by government. Mistakes are compounded by self-preserving bureaucracies, supported by taxes extracted from the market place. Eventually, and inevitably, planned societies must collapse under the weight of their own administrative and enforcement bureaucracies.

The more government exercises its power to control, the less freedom there is, in what once was known as the land of the free.

Henry Lamb is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International.

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