Last week I wrote of the prospect of banning gas golf carts in Peachtree City because some say they are noisy and stink, and that it seems symptomatic of the nanny-state drift of expecting government to solve our every petty problem.
What about the private property rights of those who own gas golf carts? When should government be compelled to intrude into a citizen’s private property?
One unique aspect of our country’s founding was the sacred rights of private property. Fearing government’s heavy hand, the founders created a Bill of Rights with 10 amendments to the Constitution outlining various protections citizens would have against an intrusive government. Six of those 10 amendments touch on the protection of private property, with the Fifth Amendment providing the most relevant piece in what is called “the taking clause,” which reads “… nor shall private property be taken for public use, without just compensation.”
I am not suggesting in any way that a ban on gas golf carts in Peachtree City would be illegal or unconstitutional. But I am hoping to prompt a little thinking about private property rights as central to our freedom, and that infringing on those rights should only be done when the need is compelling.
The taking clause gives government the legal “eminent domain” tools required to do things like build highways by taking private property from unwilling owners and giving them “just compensation.”
But that process has been abused. Some local governments have used eminent domain to wrestle away from owners their land that may have been in their family for generations merely to boost tax revenue. They give or sell the taken land to an alternate private owner for the purpose of development with the expectation that a higher use of the property will generate increased tax revenue back to the local government.
Peachtree City is doing nothing like those outrageous land grabs, but bear with me in thinking through how private property is under assault in America.
One of those land grab cases went to the U.S. Supreme Court, and in a highly controversial 5-4 decision in June 2005, the court endorsed the land grab in the Kelo vs. City of New London case.
The city of New London, Conn., condemned a 90-acre tract, a residential neighborhood of blue collar homes, to give a 99-year lease to a developer for $1, so the developer could build a waterfront hotel, office space and high-end residences, all of which would pay to the city a whole bunch of new taxes.
The city won the case, paid off and evicted the blue collar homeowners and razed their homes, but the developer failed to get the financing they needed and the 90 acres remains an empty lot.
Justice Sandra Day O’Conner wrote for the dissent, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” From a legal standpoint the case remains controversial because, critics say, it misrepresented the Fifth Amendment’s “public use” into the “public purpose” of boosting tax revenue or urban renewal.
But that is about private property in general. More relevant to the issue of Peachtree City banning gas golf carts is that regulatory actions that edge ever closer to a “taking” of private property without just compensation have historically been very grey areas.
I am no lawyer, but my guess is that Peachtree City is probably well within their regulatory authority to issue a ban on gas golf carts if the City Council so chooses, even though the value of those gas golf carts would decline immediately in the local market, never mind the intrusion into a citizen’s right to choose the type of golf cart they wish to own.
The city can probably do as it pleases with golf cart regulations, and the only thing stopping the City Council would be their own restraint from stepping on the private property rights of some citizens.
In last week’s column I wrote that I personally don’t like gas golf carts, but that my neighbor should be left alone about his gas golf cart even though he is in the 5 percent minority.
I was speaking metaphorically about my neighbor because I actually don’t even know anyone who owns a gas golf cart.
I am speaking out on this issue not because I have a personal interest in a golf cart, but because I want my government, even my local city government, to restrain themselves from using the heavy hand of authority to reach into the private property of citizens unless there is a compelling reason to do so.
The complaints of one group of citizens that gas golf carts are noisy and smelly is no compelling reason to intrude into the personal property of other citizens, even if they are in a small minority. And if we step on those rights, at the same time we will be stepping on the interest of local businesses involved in gas golf carts at a time we should be promoting the growth of local companies.
[Terry Garlock writes columns occasionally for The Citizen. His email is tgarlock@mindspring.com.]
