The fact that Iowa passed a law affording property owners additional protections, in response to the landmark Kelo decision by the U.S. Supreme Court, may be of little comfort to about two-dozen Iowa families who may soon be forced off their own land.
The high court’s ruling in Kelo v. City of New London was handed down June 23, 2005. In it’s decision the court ruled that local governments could take land from one private property owner, just to give it to another, who may generate more tax revenue with the property. The court ruled that it was permissible under the “takings clause” of the Fifth Amendment.
That clause reads, “nor shall private property be taken for public use, without just compensation.” Before the Kelo decision, “public use” was generally understood to mean something open for the use of the general public, such as roads or schools. After Kelo, local governments could take private land from one owner (a farmer for instance) and give it to another (a real estate developer perhaps). The decision caused considerable public backlash across the country.
Here in Iowa, the Legislature responded by passing an anti-Kelo law in 2006 which tightened the state’s laws protecting landowners. Then-governor Tom Vilsack vetoed the bill, but the Legislature overrode his veto by wide margins. (After sticking his thumb in the eye of Iowa’s farmers and property owners on his way out of office, Vilsack now serves as Obama’s Secretary of Agriculture.) Three years later, Iowa’s eminent domain law may face it’s first real test.
Recently the Clarke County Reservoir Commission voted to condemn farmland in order to build a new 900-acre reservoir north of Osceola. Osceola City Administrator Bill Kelly said that the area’s current reservoir has about 7 percent capacity remaining. When that’s completely tapped, it may hamper efforts to develop a new hotel and upscale subdivision that the town wants. The reservoir would also have a 300-foot beach, boat ramp and campsites, which supporters hope would help draw tourists to the area.
It sounds like a nice idea, but Clarke County has the same dilemma that Harvey Corman’s character did in “Blazing Saddles” when he said, “Unfortunately there is one thing standing between me and that property: the rightful owners.” About two-dozen rightful owners actually.
The landowners (many of whom live on the soon-to-be-submerged land) and their friends don’t plan on going down without a fight. Opponents of the lake allege that supporters have exaggerated the area’s water needs. Either way, the project puts the needs of future development over the welfare of current tax-paying property owners.
Representative Jodi Tymeson, a Winterset Republican and reservoir opponent, points out that many members of the Clarke County Reservoir Commission are unelected representatives of local developers and a local water association, who stand to gain from the project. “Iowans understand eminent domain for real public uses, but private property ownership is just basic to our individual liberties,” said Tymeson.
The project sidesteps Iowa’s anti-Kelo law since it does not take land and give it directly to private developers. Instead it takes the land and uses it for the direct benefit of those developers, at the expense of the rightful owners. “This is a deliberate attempt to get around our law,” said Rep. Jeff Kaufmann, R-Wilton, who helped pass the 2006 law.
The county government has deeper pockets than the rural residents that it seeks to dispossess, leaving Kaufmann hoping that an attorney might provide pro bono legal services for the group. If this lake project proceeds, opponents fear that it may encourage the use of eminent domain for other development and recreation projects. “I’m not sure anyone in Iowa is safe,” Representative Tymeson said.
This project may not be as an egregious case of eminent domain abuse as that which is now enshrined by the Kelo decision, but that doesn’t mean it’s fair.