• Gary Sandler
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    Published 26 July 2018

    Among the provisions contained in the Fifth Amendment to the US Constitution is one that states that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The concept is called eminent domain. According to Black’s Law Dictionary, eminent domain is the right of the people or government to take private property for public use.

    Historically, eminent domain has been used by state, federal and local governments to acquire property from private owners without their consent as long as the property was to be used for large public projects such as highways, railroads and schools; or to rehabilitate blighted areas, as long as the owners received “just compensation.” That sounds simple enough, but there’s much more to the story. Just ask Suzette Kelo.

    Kelo, a registered nurse who purchased a little pink house in the Fort Trumbull area of New London, Connecticut, in 1997, was told in 2000 that the city of New London had decided to seize her property to make room for a large private development. In essence, the city was using eminent domain to take property from one private person and give it to another private person — a developer in her case. The Kelos objected and sued the city. The now-famous case was Kelo v. City of New London.

    After losing at the local and appellate levels, the Kelos appealed the decision to the Connecticut Supreme Court. Following a loss there as well, the ruling was appealed to the U.S. Supreme Court. In a narrow 5-4 decision, the high court determined in 2004 that local governments may indeed seize peoples’ residential properties and businesses for private economic development. The ruling effectively changed the definition of “public use” to “public good.” The “good” being the increased taxes and jobs created by the new development.

    The court also determined that individual states had the power to pass laws restricting condemnations. As a result, state legislatures across the country, including here in New Mexico, took action. The Washington Post reported in 2015 that in the 10 years following the decision, 45 states enacted eminent domain reform laws.

    In 2006 the New Mexico Legislature passed House Bill 746, limiting the use of eminent domain. Not liking the language of the bill, then-Gov. Bill Richardson vetoed it and formed a task force to study the issue. In 2007, both houses of the legislature voted to remove eminent domain from the state’s Metropolitan Redevelopment Code and replace it with what many have referred to as one of our nation’s strongest reforms against the taking of private property for private development.

    Eminent domain cases are not a recent phenomenon. One of the earliest examples of eminent domain in New Mexico took place in 1945, when the federal government seized almost 90 percent of the 150,000-acre W.W. Cox Ranch. The ranchland, which had been in existence since the late 1800s, was used to create White Sands Missile Range.

    Thanks to the good work of our legislature, developers can no longer use eminent domain to take our properties and use them for their private developments.

    See you at closing!

    Gary Sandler is a full-time Realtor and the owner of Gary Sandler Inc., Realtors in Las Cruces. He can be reached at 575-642-2292 or Gary@GarySandler.com.

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      Gary Sandler