FYI
Jack
Venrick
Enumclaw,
WA
http://www.citizenreviewonline.org/may_=
2003/eminent.htm
| Eminent domain and private gai=
n -
A report claims that 10,000 properties have been seized by cities for pri=
vate
developers. By Alexandra=
Marks
| PORT CHESTER, NEW YORK –
Bill Brody thought he was set for life. He'd bought and renovated four
buildings on South Main Street in this struggling New York suburb and was
successfully renting them out. The village had simply declared
eminent domain, so that another private developer could build part of a S=
top
& Shop and parking lot where Mr. Brody's commercial buildings sat. "It's ludicrous," sa=
ys
Brody. "If it was for a road or a school or a highway I wouldn't
bother." But since the village was taki=
ng
his property only to give it to another private developer, Brody decided =
to
take it to court. The Constitution does give loc=
al
governments the right to condemn property through eminent domain for
"public use" if the owner is compensated. But in the past five
years, both state and local governments have taken or threatened to take =
more
than 10,000 homes and small businesses such as Brody's to turn them over =
to
private developers, according to a report compiled by the Institute for
Justice, a nonprofit advocacy law firm in Washington. The local governments contend
they're creating bigger tax bases and more jobs to help the local economy.
That's the "public use." But to critics it's an unconstitutional
abuse. "Practically every house =
in
the entire country would produce more jobs and taxes as an office buildin=
g,
and everybody's small business would produce more jobs and taxes if it we=
re
removed and turned into a Costco," says Dana Berliner, a senior atto=
rney
at the Institute for Justice. "If that's all it takes, then your hou=
se
or business can be up for grabs as soon as a some
private business interest takes a fancy to it." The increase in the use of emi=
nent
domain for private entities has created a groundswell of opposition from =
New
York and Detroit to California. The Institute for Justice's re=
port
documents dozens of instances of apparent abuse where states and local ci=
ties
and towns put the interests of individual developers over longtime reside=
nts.
For instance: • In Atlantic City, an
entire black middle-class neighborhood was condemned and destroyed to make
way for a tunnel to a new casino that was never built. • Bremerton, Washington
removed a woman in her 80s from her home of 55 years for the claimed purp=
ose
of expanding a sewer plant, but gave her former home to an auto dealershi=
p. • West Palm Beach County=
in
Florida condemned a family's home so that the manager of a planned new go=
lf
course could live in it. Many individuals are fighting =
the
practice and the courts, which used to routinely rubber stamp local
condemnations, are responding. In 40 percent of the challenge=
s to
eminent domain brought between 1998 and 2002, courts sided with the origi=
nal
landowners. Six state legislatures have passed bills increasing protectio=
ns
for people threatened with eminent domain. Eleven others are considering =
such
bills, including New York. The practice of eminent domain=
has
been abused throughout US history. When the railroads and many of the
nation's highways were built, landowners were often told their properties
were condemned, given a dollar and told to go to court if they wanted the=
ir
"just compensation." But even using such high-handed tactics, m=
ost
eminent-domain condemnations were used for clearly delineated public
purposes. In the early 1950s, a landmark
case changed that. Washington, D.C., wanted to redevelop a rundown part of
town. So it declared eminent domain and condemned the property by arguing
that it constituted a public use by getting rid of the "blighted&quo=
t;
area. The Supreme Court upheld the notion that it's a public good to get =
rid
of blight, but made no determination one way or the other on the appropri=
ateness
of handing the property to private developers. "The Supreme Court gave
'public use' definition by saying it had to be of public purpose," s=
ays
Veronique Pluviose-Fenton, an attorney with
National League of Cities. "Redeveloping brown fields can be seen as=
having
a public use because it gets rid of an environmental hazard." It wasn't until the booming 19=
90s
- when real estate prices soared - that the practice of condemning proper=
ty
for private development really took off. According to the Institute for
Justice report, local governments went from condemning blighted areas to
applying the practice to rundown neighborhoods. Then it began to be condemn properties in areas that looked just fine. In Lakewood, Ohio, for instanc=
e, a
whole neighborhood of colonial homes was recently deemed "blighted&q=
uot;
because the backyards were too small and the homes didn't have two-car
garages. The city is turning the property over to private developers to b=
uild
upscale condominiums and retail space. "Things have gotten worse=
as
the word spread among businesses that they can acquire land without havin=
g to
go through a bidding process," says Gideon Kann=
er,
a professor emeritus at Loyola Law School in Los Angeles and expert on the
issue of eminent domain. "They can overcome opposition and force the=
ir
way into communities that don't want them." The National League of Cities'=
Ms.
Pluviose-Fenton wouldn't comment on any indiv=
idual
case. But she admits there have been abuses. But in general, she insists =
the
power of eminent domain is used responsibly and that the courts are there=
to
act as a check and balance. "I think local governments
are keenly aware that that kind of abuse gets the attention of people in
Washington who are, at a =
moments
notice, ready to pass legislation that would restrict local authority.&qu=
ot; Lawmakers in New York State are
considering a bill that would at least require cities and towns to notify
people like Mr. Brody that they're taking their land so that they can at
least mount a legal fight. Brody had wanted to challenge =
the
city's designation of the street as "blighted." Just a few years
earlier, it had spent a million dollars putting in new roads, underground
wires, and quaint 19th street lamps. It had assessed him almost $60,000 f=
or
the upgrade. The street had a thriving, eclectic mix of antique shops, La=
tin
restaurants and commercial space when it was condemned. Several property owners, in
addition to Brody, are challenging the city. But so far have had little l=
uck
with the local courts. "I've never, never seen anything like this,&q=
uot;
says Mike Rikon, an eminent domain attorney w=
ith 33
years experience who is representing several Port Chester landowners.
"Since the beginning you could open the book and go down chapter by
chapter and point out the violations of the law." Anthony C=
erreto,
village attorney, wouldn't comment because the matter is in litigation. Bill Brody has taken the case =
to
federal court. A hearing is scheduled on June 2nd. "We have to get the
legislative and judicial branches to revisit this takings issue so it's a
little more friendly to the people," he s=
ays.
"Because that's what the laws are supposed to be there for - the peo=
ple
not the government." |