8/11/2004

Eminent Domain Abuse Curbed

by Mike Perez

Eminent domain — the government’s right to "take" private property after paying compensation to the owner — is specifically allowed by the U.S. Constitution for "public uses," which traditionally was understood to mean projects such as highways, courthouses and schools. In recent years, however, government agencies have been abusing that power to benefit private interests, especially developers who build big-box stores, stadiums, auto malls and other tax-generating retail centers favored by city officials.

A number of court cases triggered the eminent-domain feeding frenzy on behalf of the private sector, but the Poletown decision is widely recognized as the most ugly and egregious precedent.

Before that, cities justified their eminent domain actions as a way to clean up blight. In the Poletown case, the city couldn’t possibly call the pleasant, clean and civilized neighborhood "blighted," and instead made grandiose arguments about the need to take the properties to boost economic development throughout an economically hard-hit region. The potential justifications for the use of eminent domain were thereby greatly broadened.

Michigan’s high court was asked to revisit the Poletown case because of other pending cases involving the taking of private property for non-public interests favored by the government. At issue was Wayne County’s effort to create a 1,300-acre business park by using eminent domain. The county’s justifications echoed those used by Detroit and General Motors in the Poletown case.

In last week’s decision, the court did not completely reject the transfer of property to other private owners, but argued that such transfer can be allowed only when the new owner is undertaking a decidedly public use, such as laying railroad track on behalf of the government. The court slammed the Poletown decision for its "radical and unabashed departure from the entirety of this court’s pre-1963 eminent domain jurisprudence .... The Poletown majority concluded, for the first time in the history of our eminent domain jurisprudence, that a generalized economic benefit was sufficient ... to justify the transfer of condemned property to a private entity."

If general economic benefit makes a project a public use, then property rights no longer exist in America. Any time a government agency could find a use for a property that paid more in taxes or created more jobs than the current use, it would be allowed to take the property by force under the argument made in the Poletown case.

Michigan’s high court exercises no jurisdiction in Texas, but we hope officials and politicians here will take note of this ruling. No private company has a greater right to your property than you do.


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