8/27/2004

News Eminent Domain Ruling Could Change Outlook of Ardmore Project



by Richard Ilgenfritz


What does Poletown have to do with our town? For residents in Ardmore and Bryn Mawr fighting development plans, a court's decision to overturn the 23-year-old Poletown eminent domain case in Detroit could make all the difference in the world.

Last month, the Michigan Supreme Court overturned a 1981 ruling known throughout the world of eminent domain law as Poletown. In the Poletown case, the city of Detroit invoked eminent domain to condemn an entire neighborhood. The property was then turned over to General Motors. The automobile manufacturer used the site to build a new factory.

The city argued that using the land for the factory would increase jobs and tax revenues for Detroit. That benefit, Detroit attorneys argued, would satisfy the requirements that eminent domain only be invoked to serve a public need.

Detroit ultimately won permission to use eminent domain, and the neighborhood was demolished. More than 1,000 homes were torn down and thousands of residents were displaced.

Recently, a Michigan court overturned the Poletown decision, finding that the promise of economic development did not justify using eminent domain to transfer property from one private party to another.

Glenn Zeitz, the attorney representing seven Ardmore businesses that are located within the recently approved redevelopment zone, said the Michigan case would be important as the redevelopment fight in Ardmore moves forward.

"Poletown has been the case that set the precedent for eminent domain cases," Zeitz said. The Poletown case has been cited in eminent domain cases throughout the country.

For years, eminent domain was used to clear the way for large public projects such as highways and parks. But after the Poletown decision, eminent domain began to be more commonly used by municipalities to turn the land over to private developers to build factories, stadiums, apartments and shopping centers.

The question at issue in Poletown and other similar cases is whether economic development is a public good in the same sense that a highway is.

"This decision says that the new economic benefit does not outweigh property rights. So basically this is a clear victory for property rights," Zeitz said.
Lower Merion Commissioner Jim Ettelson said although the case has been cited in Pennsylvania, he believes Ardmore is different.

"In Ardmore we would hate to rely on that decision. [Montgomery County Planning Commission] has said we are on firm ground," Ettelson said. Ettelson also believes there are other differences between the Poletown case and Ardmore.

"One of the biggest differences is what we are attempting to do in Ardmore. This is really for public parking and revitalization. That is a lot different than condemning the property for a private corporation," Ettelson added.

But Lower Merion's plans do call for the construction of new apartment buildings and commercial real estate, which presumably will be owned by private businesses. It is also possible that the public parking developed under the rubric of revitalization will be administered by private, for-profit businesses.

It isn't a secret that some businesses and property owners in Ardmore and Bryn Mawr have been nervous about the use of eminent domain.

When Lower Merion and Montgomery County approved the Ardmore Redevelopment District earlier this month, declaring downtown Ardmore "blighted," that decision gave the township all the power it needed to condemn any property within the district.

The Ardmore Redevelopment District includes most of downtown Ardmore on the south side of the railroad tracks from Church Road to Ardmore Avenue. It also includes two parking lots owned by Suburban Square and properties south of Lancaster Avenue from Argyle Road to Ardmore Avenue.

The cornerstone of the Ardmore Master Plan that was adopted last year is a parking garage along the railroad tracks with retail shops and apartments along Lancaster Avenue. In the master plan, that building is being called the Ardmore Transit Center.

If it were built, the $40 million structure would replace more than a dozen businesses west of the Lower Merion Public Safety Building to Station Avenue.
Business owners see the decision as a victory.

"Clearly they can't use eminent domain for economic development," Joe Rufo, owner of Brownies 23 East said. Rufo's business is in the middle of the block that is being considered for the transit center.

In Bryn Mawr, neighbors have also been worried about a plan to redevelop the neighborhoods near the hospital. Two years ago, Main Line Health began a process to buy up more than 70 properties along Summit Grove and Central avenues. For about a year, MLH has been reporting that they have bought about two-thirds of the properties. But there are still some holdouts in the neighborhood.

Although Main Line Health cannot legally condemn the remaining properties, the concern for residents has been that the township could – through a parking authority – establish a rationale to use eminent domain. Lower Merion could then turn the property over to Main Line Health.

Main Line Health has proposed using the neighborhood for parking garages, medical office buildings, retail stores and apartments.

Timothy Sandefur, an attorney with the Pacific Legal Foundation who filed an amicus brief in last month's Michigan case, said it is hard to tell how the ruling could affect Bryn Mawr and Ardmore.

One possible problem Sandefur believes property owners could face in both communities is that both of the redevelopment projects include what could become municipal parking lots. The courts may be inclined to agree with the township that a municipal parking lot is serving the public benefit. And in the case of Bryn Mawr, because a hospital is involved, the courts may be more sympathetic with their need to expand and provide parking for patients.

Zeitz believes the Ardmore case is more complicated than the parking lot issue. If it were a case of Lower Merion condemning the properties to turn them into township owned municipal lot, he believes the courts might agree with Lower Merion. But since the township would likely turn the property over to a private developer, the courts should no longer use the Poletown precedent.




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