8/23/2004

Can They Take Your House?


Letter to the Editor


MANY Philadelphians have been worried about the city's use of eminent domain. This legal principle lets a government body acquire real estate "for public use" at what is essentially fair market value even if the owner doesn't want to sell. Eminent domain is important in the city today principally because of the Neighborhood Transformation Initiative.

At issue are viable buildings or vacant lots in blighted areas at prices that may, indeed, represent fair market value but aren't enough for the owners to buy comparable replacements.

The trend has been to define "public use" broadly. Interpretations such as "for public benefit" or "the greater good" have often been accepted. A decision by the Michigan Supreme Court may now halt that trend.

Wayne County wanted to take land and sell it to a developer for a high-tech industrial park. The county argued that a "public purpose" would be served through greater tax revenues and job creation. The court agreed the facility would provide a public benefit, but found that the project was not a "public use," violating the conditions for "takings" in the Michigan Constitution - conditions which appear in identical form in the U.S. and most state constitutions, including Pennsylvania's.

This decision will force government entities to substantiate the public use requirement of eminent domain. This may be impossible in some NTI situations when property is turned over to a private developer.

But people who believe they can now keep their homes in areas identified for NTI revitalization should bear two caveats in mind. First, the Michigan court allowed condemnation of property so blighted that it threatened health and safety, recognizing that the protection afforded by seizure and demolition is a public use, regardless of its subsequent disposition.

Second, if the property is taken for purposes like parks or schools, or ownership is to be retained by a government agency like the Philadelphia Housing Authority, or by a tightly regulated utility, the public use requirement is satisfied.

Alan Krigman, President

KRF Corp., Philadelphia