Oregon should reform its eminent domain laws to narrow the scope of its use.
Can the government take your property by force for whatever reason it concocts? Mostly no. Yet the Lake Oswego School District (LOSD) seems to think it can. On August 10, in a disgusting show of force, the school district authorized the potential use of eminent domain to acquire property from SouthLake Church, situated across the street from Lake Oswego High School.
Eminent domain is a legal tool governments in the U.S. use to acquire property. The Constitution allows for its use but protects against unjust takings in the Fifth Amendment. The Takings Clause reads “nor shall private property be taken for public use, without just compensation.” Numerous judicial decisions have rightly defined “property” and “just compensation” within the meaning of the Fifth Amendment. Several decisions after the ratification of the Fourteenth Amendment ensured the Fifth Amendment expands to all levels of government in the U.S. However, the meaning of “public use” is still somewhat undecided, and a bit controversial.
In 2005, the Supreme Court decided Kelo v. City of New London, an infamous case that expanded the use of eminent domain to allow for private-to-private transfers. Essentially, governments, under the Court’s interpretation of the Fifth Amendment, were permitted to use eminent domain to transfer private homes to private corporations for the purpose of economic development, economic development being deemed “public use.”
In the wake of Kelo, several states, including Oregon, passed laws to prevent the use of eminent domain for private-to-private transfers. Oregon’s eminent domain reform came through Measure 39 on the 2006 ballot and prohibited the condemnation of private property if the end result was the transfer of the property to another private entity.
Unfortunately, “public use” still has a fairly expansive meaning in Oregon. That and the case of Lake Oswego School District and SouthLake Church prompts an important policy question: do Oregon’s eminent domain laws need reform?
LOSD has authorized the use of eminent domain to acquire the SouthLake Church property. As OregonLive writes, the school district “needs” the property “to construct a Community Transition Program facility to serve 18- to 21-year-old students with developmental disabilities, build STEM and career technical education facilities and add additional parking and a gymnasium.” These programs are already run out of other facilities, so the actual necessity for this property is unclear, let alone the question of whether this is actually public use.
To be clear, LOSD had every opportunity to purchase the property when it went on the market. Their bid competed with SouthLake Church’s bid and those of other interested parties. SouthLake won and now owns and occupies the property. The authorization of eminent domain is a disgusting abuse of power from a government that is upset it lost a bid and is willing to bully its competition into submission.
As it stands, Oregon law and Takings Clause case law permit this sort of abuse. Under the current Supreme Court, that case law might be subject to change should there be a case with standing to overturn the existing precedent. The better route, however, would be for Oregon to bolster eminent domain laws to specifically define “public use.” That definition needs to be as narrow as possible and have an underlying requirement of necessity to it.
Property rights are fundamental to the American way of life. No government should be allowed to infringe upon them, and Oregon law shouldn’t allow for abuses of power like the disgusting one on display in Lake Oswego.