2020 Bills

HB 261: Limiting Eminent Domain

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Libertas Institute supports this bill

Staff review of this legislation finds that it is aligned with our principles and merits support.

The government has long claimed the authority, under a law known as eminent domain, to take your property if it thinks it needs it, say, for building a road or a government building. But this law has been regularly abused for non-essential things, broadening the law beyond the more legitimate use cases its advocates cite in its defense. Soccer fields, parks, and connective trails have been areas of controversy with eminent domain in recent past.

In Utah, eminent domain is currently allowed for “public uses for the benefit of any county, city, or town, or its inhabitants”—a broad provision that needs narrowing. Some exemptions exist; for example, eminent domain may not be used for trails.

But more work is needed to protect property rights from abuse. For starters, eminent domain should be prohibited for non-essential things like parks, recreational or sports facilities. Utah law should be explicitly clear in this regard in order to deter elected officials from trying to exploit the law in their favor, and to the detriment of property owners.

Further, a property owner who wishes to challenge the taking of their property—even for an allowed use—faces an extreme uphill battle. Essentially, you need to demonstrate that the government acted in bad faith. Courts are not given any criteria to review the government’s claims as to whether a property taking is actually necessary.

House Bill 261, sponsored by Representative Phil Lyman, addresses these concerns in that it delineates what can be considered “public use,” protects property rights by denying eminent domain to non-essential uses such as for recreation, allows for owners to contend that the taking of their property is not necessary, and gives owners greater discretion in the sale of their property in limited circumstances.

Tightening up the rules for eminent domain—the taking of private property for allegedly public need—should be constrained to things that are only absolutely necessary. Property rights in a free society are foundational to life, liberty and the pursuit of happiness.

  • Alan

    In many respects land is, like water, a shared resource. I’ve toyed with the notion of the government simply leasing land as “ownership” is rather a myth anyway as taxes could be considered a lease fee. Ownership is just one way to allocate scarce resources. The “rent” on “leased” land would be tied to the cost of services provided by the government and nothing further, the improvements made at the risk of the investor of which said risk could be insurable by private market driven companies. That evens out the financial risk to large corporations vrs large government. Just an opening gambit in a thought experiment.

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