Eminent domain examined

Market Street in Poughkeepsie is recognized as an important historical site. It is there that the New York representatives agreed to ratify the U.S. Constitution on the premise that a Bill of Rights would protect the rights of individuals against the tyrannies of government.

I am thinking a lot about the Constitution this month at the County Legislature Chambers, also on Market Street. The Legislature is voting whether to condemn a private citizen’s property to create 33 parking spaces along the County Rail Trail.

Government take-over of private property is provocative. Our forefathers cherished the concept of private property, and yet Thomas Jefferson in writing the Declaration of Independence substituted John Locke’s natural right of “property†with “the pursuit of happiness.†This in turn enshrined the government’s right to usurp private property for “public use†provided there was “just compensation†through the Takings Clause of the Fifth Amendment. The hostile takings of private property is therefore as American as apple pie and baseball it would seem ­— and yet something about it seems so alien to the American spirit of individualism, opportunity, independence and ownership.

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The term “eminent domain†was coined by Dutch jurist Hugo Grotius in 1625. While he viewed it as an important right, unlike Locke, who came afterward, Grotius did not view property as a “natural†right. Instead he said government may seize private land for public utility provided they “make good the loss.â€

Property rights are a balance between the sovereign and the people. In recent times, the U.S. Supreme Court has liberally defended government’s right to forcibly transfer property title. A public uproar followed the court’s 2005 Kelo v. City of New London decision, provoking 43 states to modify their eminent domain laws. New York was not one of them.

Thus when county government sought my vote to proceed in condemning a half-acre of a landowner’s property in Wappinger to make room for Rail Trail parking, I deduced that this was a legitimate use of government power. But more is required than mere considerations of legitimacy.

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The landowner has rejected offers to buy the land. I think he is entitled to do so, even if it means the public has to park elsewhere along the trail or walk farther to access the corridor that from the start was intended for exercise and locomotion. Parking is something that in my opinion falls short of a justifiable public use to deprive someone of their land, and yet nowhere in the Constitution are we legislators afforded the leeway to weigh the merits of “public use.†Or is that precisely why we were elected?

Like that other dreadful power of government — taxing authority — we legislators have the option of deciding when government should flex its muscles. In this instance it’s whether we empower government with the discretion to violate property rights, and hence invade our very lives. There are times when eminent domain is appropriate. Here, I conclude that just because government can seize property, doesn’t mean it should. I’ll be voting no.

Michael Kelsey represents the towns of Amenia, Washington, Stanford, Pleasant Valley and the village of Millbrook in the Dutchess County Legislature. Write him at KelseyESQ@yahoo.com.