A Dangerous Abuse Of Eminent Domain

NH State Constitution – Article 2 – Natural Rights – All men have certain natural, essential, and inherent rights – among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness…”

I recently talked about how individual liberty in America is always tied to a greater, historical understanding of the term “property” (http://tinyurl.com/j8o9j75). One of our founding principles is that the actions of our government into an individual’s life must be as minimal as possible. When we talked about eminent domain, the seizing of a person’s property, the standard for such an intrusion must bear a very high burden. A casual review of eminent domain in America would sadly reveal the opposite.

Imagine you are a law-abiding citizen with a family and house you love. You’re a small-business owner who provides decent jobs for a fair wage. You dutifully pay your taxes and try hard to be a good neighbor. If a representative from city hall knocked on your door and informed you they are taking your land by eminent domain, what would you do? Do you just hand over the keys or do you fight city hall?

Currently, almost all the laws, regulations and power regarding eminent domain benefits government at every level, and in reality, always has. The New Hampshire Constitution and 5th Amendment of the U.S. Constitution provide for eminent domain, with the simple understanding that it be for the “public good.” Vague interpretations are a government specialty, and the term “public good,” is ripe for abuse.

If I asked a person on the street to describe eminent domain, most would say it is the government’s ability to reclaim private land, offering fair compensation, in an effort to support a public project for the good of the people. Most would cite the building of a school, fire station or a road as examples of projects worthy of applying eminent domain. Some would say those are examples of the “good side” of eminent domain. There is no good side. The best we can hope for is that any property seized was deemed “an honest necessity.” Such a threshold requires all of us to hold the government to the highest standard.

If there is an intrusion into a person’s “natural rights” we must always err on the side of the property owner. This especially holds true if the seizure is an attempt to bypass a mistake of the government. Which brings me to the case of Toyota of Portsmouth.

Jim Boyle, owner of Toyota of Portsmouth, bought his current location in 2003. He invested a great deal of time and money into developing the land. He has managed to be a good steward of the property, offering a needed product to the community, and providing a good living for numerous employees. Boyle has done what we expect of a good citizen.

In 1968, the city of Portsmouth built a sewer line through the property he currently owns. At that time the city failed to document the sewer line easement at the registry of deeds. Over the course of time, the property exchanged hands several times. Each time, no effort was made to correct the original mistake.

When Boyle purchased the property the sewer line was not properly identified; he was not even informed it existed. The simple truth is the sewer line is illegal, the result of Portsmouth’s incompetence. Boyle requested the removal of the line or a monthly rental fee to allow it to remain.

What if a landowner made such a gross mistake? What do you think the city’s reaction would be? Liens, back taxation, possible criminal charges, removal of the violation? Yes, yes, yes and yes. However, the bigger the government, the smaller the citizen.

This has been a contentious issue with too many people vilifying the person who was wronged, Jim Boyle. He did nothing wrong. The bad actor is the city. That is not just my opinion. It is the opinion of numerous court cases Portsmouth has lost. Portsmouth made a mistake, and the answer is to compound it by trampling over Boyle’s “inherent rights.” The city wants to use eminent domain to fix its mistake. This would be another gross misuse of eminent domain.

The city has likely lost hundreds of thousands of dollars so far (an independent, public accounting is needed), and Boyle has spent millions defending his liberty. The solution of re-routing the sewer line is not only feasible, but by most accounts, cheaper than what the current legal bill is, and likely far cheaper than the total legal costs. Boyle has no plans to stop fighting, and the city is determined to spend hard earned, taxpayer dollars to defend its mistake, you know, for the “public good.” After all, it’s not as if the city councilors or city attorney have to pay the bill.

Boyle’s efforts are in fact in defense of all our rights. Some will applaud Portsmouth for less than noble reasons. Rivals will secretly take glee that a competitor is being weakened, not through poor business practices, but by government malfeasance. Others, who hold an opposing political view to Boyle’s, are applauding Portsmouth’s actions, ignoring the fact they are permitting a precedent that would have an adverse effect on all citizens, not just in Portsmouth, but across the country.

It is the duty of every citizen to stand in the defense of a fellow citizen. When we protect the inherent rights of an individual, we protect our own. To hold our government accountable, and keep its “just powers” in check, is the responsibility of all citizens.

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