Daryl James: Don’t trade property rights for trails

(Photo courtesy of Institute for Justice) Ross and Dianne Egbert at their home in Ogden.

Ogden resident Dianne Egbert posted a warning sign in her yard when city planners came for her property: “Hands off my home.” She has a similar message for state lawmakers looking at dueling bills on eminent domain.

Egbert understands that property seizure is sometimes necessary, but she also knows that government officials who talk about public interest often have ulterior motives.

“They’re very sneaky,” she says. “They do not always have good intentions.”

Instead of starting with need and then identifying land for seizure, they often reverse the order. They start with the land they want and then invent the need.

Egbert learned the hard way in 2016, when Ogden designated her entire neighborhood an eyesore. As she discovered later, the city’s concern about so-called blight was just a ruse to get residents like her out of the way for redevelopment.

“Everything was predetermined,” she says. “The city wanted my land, and the only way I would sell is if they forced me to sell with eminent domain.”

Egbert’s house, built in 1910 on a half-acre lot, had a new roof and tidy yard when city inspectors showed up with their clipboards. Some neighbors said the property looked like Cinderella’s cottage. Others called it the Gingerbread House. The government had its own term.

“You live in a wart,” one official told Egbert. “You’ve gotten used to your wart, but you still live in a wart and we need to take it.”

Determined to find something wrong, inspectors cited lack of compliance with modern earthquake codes. They also inflated community crime statistics by counting nonemergency police calls. “The city did a half-hearted blight study that was totally inaccurate,” Egbert says. “They lied. They told us different stories on several occasions.”

Fortunately, Egbert and her neighbors banded together and ended the threat with help from the Institute for Justice, a nonprofit law firm that fights for property rights. Egbert celebrated, but others addicted to government power started looking for ways to soften citizen protections.

One idea comes from Rep. Mike Winder, R-West Valley City. He longs for the days when municipal planners could seize homes and demolish them to make room for recreational trails. Utah ended the heavy-handed tactic in 2008, but Winder wants to bring it back with House Bill 133.

“Years ago, all trails in the state could be built using eminent domain,” he told Tribune reporter Brian Maffly. “The Legislature pulled that authority back. We feel the pendulum went too far.”

When the pendulum swings back, Winder might be hoping for a wrecking ball. That’s what he tried to bring to one neighborhood in Millcreek. As economic development director for the city, he led an effort to tag hundreds of well-kept homes as blighted. When the scheme failed at the end of 2018, he pushed through House Bill 245, which limits eminent domain oversight for all Utah property owners.

Among other things, the measure imposes a less ominous-sounding term for “blight,” changing the word in state law to “development impediment” — something less likely to trigger opposition when legal notices come from City Hall. Winder’s new bill would shift the advantage to government agents even more.

Egbert has nothing against scenic trails, but she senses a trap from politicians with a history of abusing eminent domain. “Why should we trust them to know better what to do with our property than we know ourselves?” she says.

She prefers House Bill 261 from Rep. Phil Lyman, R-Blanding, which would ban eminent domain for all recreational purposes, including golf courses, parks and community centers. The legislation would reserve eminent domain for cases of clear public necessity.

“That would be a good bill,” Egbert says.

Recreational facilities serve a useful purpose, but nobody should lose their home so others can have a great place to go biking, running or horseback riding. The cost of the tradeoff is too high. Trails paved with good intentions lead to tyranny when the sacrifice is property rights.

Daryl James

Daryl James is a writer at the Institute for Justice in Arlington, Va.

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