San Diego Business Journal

When an arsonist destroys a neighborhood and drives a dozen families from their homes, we instantly recognize that neither insurance payment nor the imprisonment of the terrible offender can staunch the tears of the families.

How much worse when the destruction is the equally purposeful act of local government officials.

Eminent domain is the nuclear weapon of politicians, too easily used when it should be the absolute last resort. Our Founding Fathers placed the "taking clause" into the Fifth Amendment as the final alternative for a federal government stymied in making extremely valuable projects. That terrible power has passed to states, counties, and cities and even down to school boards, creating a tyranny liberally wielded by even the lowest elected officials for the most minor of reasons.

The Escondido Union High School District recently considered seizing a dozen homes and at least one thriving business from local residents to build a new high school. At least an arsonist's fire has the advantage of being a quick death for the home, but the Escondido school board threatened to destroy the homes and continually terrorized the families over long periods of time, placing the families under psychological duress for month after month.

Obviously, the choice of the particular site where this atrocity was proposed was not the board's only alternative. One has to ask, if the members of the school board families lived in homes on the proposed site, would this site have been under serious consideration? If the superintendent owned the threatened nursery, would the site be under serious consideration?

Though the issue has since been pulled, a dozen families were seriously threatened. The proposed site was only one of four potential sites, but it rose to the top of the selection process at least once. The threat to the families was real. These were not houses; they were homes.

Real people live in those homes! Men, who have painted and planted; women, who have designed and planned and tended the home and gardens; and children , some of whom have lived nowhere else , have chosen the colors of their rooms and left their handprints in paint on the walls.

When a security guard arsonist destroyed unoccupied homes recently in Maryland, it made national TV for days. How much worse is this purposeful destruction of homes occupied by our innocent neighbors?

Any site proposal requiring the use of eminent domain is an arson fire played out in slow motion. And remember, if their homes can be so capriciously destroyed, your home is never safe.

Site selection for public schools is never easy; no one wants a big school near their home. Land is the most expensive part of any California building equation, but multistory schools are rare. Because bond money is so easily obtained "for the children," the various school boards do not insist on economies that any for-profit organization would do, such as reusing stock plans and insisting on multistory buildings. Each school must have a nice football stadium despite each stadium being used one night a week for only a few weeks a year. There are 85 non-school libraries in San Diego County, but each school must have an on-site library , more than 500 in schools in this county alone! The economies available, but not used in government schools, are legion.

But it is the use of eminent domain for school sites that is the most destructive to society. The founders could never have imagined a school board using the most powerful and destructive clause of their Constitution; in fact, the founders never imagined a school board. The authorization for education or schools does not appear in the Constitution. Education is not an enumerated responsibility of the federal government. Under the Constitution's 10th Amendment, education becomes a state responsibility. (So, why is there a U.S. Department of Education?)

The city of Escondido is now threatening an unoccupied piece of property with eminent domain for a fire station, but this means paying "fair market value" and it does not disturb a family. This power of eminent domain has been expanded across the country to encompass seizure of property to resell to private developers , a gross misrepresentation of the founders' intent. More recently, the Institute of Justice has successfully challenged those "takings" in court.

Probably the most visible example of wrongful "taking" was the seizure of homes several decades ago in order to give the land to the Los Angeles Dodgers to build Dodger Stadium. In Detroit, the city seized all of Poletown to build a Cadillac plant, but the Michigan Supreme Court ruled (23 years too late) that the seizure was illegal. That was of little solace to the families who were displaced, but slowly the power of eminent domain is being constricted by the courts to "public use."

It was not the intent of the founders that the constitutional powers, including eminent domain, be downwardly distributed to the states, then to the counties and the cities , and to school boards. After decades of expansion of the power to almost everyone for almost every use, that power is slowly, ever so slowly, being restricted.

But the Escondido kafuffle shows that the power can still be misused even in public use and the strong public reaction to that indicates public pressure can, and does, keep it in check.

Occasionally.

Allen Polk Hemphill is a freelance writer living in Escondido.