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Raub Report March 2012

March 13, 2012

We are having a very interesting discussion in our fair city over private property rights.   You may know that Wal-Mart has a tract of land at Wurzbach Parkway and Blanco Road under contract.  The property has been appropriately zoned for this type of use since the early 1970’s when the land for the surrounding subdivisions was  sold  the understanding that remainder on Blanco Road would be apartments and retail. Later, they also sold some land to the city for the right of way for the Wurzbach Parkway .   Now, because of the protests of the neighborhood, the City Council has taken the extraordinary action of initiating a down zoning to the property that not only blocks Wal-Mart, but any other likely retail use.  Normally, rezoning is done at the property owner’s request, not over their protest.

This action might be considered what is called a “taking.”  This means that because the government action has such a detrimental impact on the property value, that the government has seized the property’s rightful value.  Normally, this would at least require the government to pay the property owner for the “taken” value.  Or, as is likely, it will result in an expensive lawsuit.    Either way, your money as a tax payer, will go to pay for the city’s actions, whether you agree with it or not.

I know of a situation two years ago in which the city council down zoned a property so that the city councilman could control who the property owners put in as a tenant.  Right here in River City.

Another situation occurred in Connecticut. (See Kelo vs. New London).  In this case, a city took possession of private property owned by an elderly lady in order to give it to a developer for a planned commercial development.  This city would benefit from the increased property taxes and likely retail sales taxes.  This case went to the Supreme Court which sided with New London (5 to 4).  This caused the State of Texas to pass a law forbidding cities’ to use development as an excuse for condemnation of property. See Texas Landowner’s Bill of Rights.

The Blanco Road case is different, but I believe is no less a type of seizing of property.  A local developer experienced a more severe form of this property seizure, when condos he had built in a South American country were nationalized by the government.  He lost everything and so he moved to the United States where private property is sacred, at least until recently.

The supporters of the down zoning, including the Mayor, almost all of the city council and former Mayor Phil Hardberger take the position that Wal-Mart is so objectionable as a neighbor, that it should be forced out.  Of course, Wal-Mart is one of the largest employers in the U.S. and one of the most profitable companies.  I will bet many of you own some stock in your IRA’s mutual fund.

The issue is clearly private property rights versus the perceived good (bias?) of the neighbors.  My position is not that Wal-Mart is the highest and best use for that corner, but that it is an extremely dangerous precedent for the city government to start “seizing” private property because a “mob” of neighbors thinks it serves their personal good.   Attorney General Greg Abbott said, “Private land ownership lies at the heart of our democratic, free-market system. Recognizing this important principle, President William Howard Taft once observed, “Next to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution.”

The Fifth Amendment in the Bill of Rights states simply and eloquently, “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.”     When governments so casually infringe on our private property rights under the constitution, we may be looking squarely at the end of everyone’s freedoms.  Don’t like Wal-Mart?  Who’s next!