Panelists discuss eminent domain
Cleveland Plain dealer, 9/30/04

Groups examine Lakewood's, others' policies

by Thomas Ott

People who favor giving government power to seize land for new houses and stores pleaded their case Wednesday in Cleveland, but they won't have a say when the nation's top court hears the matter early next year.

Panelists at Cleveland State University exhumed and dissected Lakewood's Issue 47, which was narrowly defeated last fall. Voters were asked whether the city should be allowed to use its powers of eminent domain to take land after paying fair market value so private developers could build upscale housing and shops in the West End neighborhood.

A second panel discussed court rulings in other states that have restricted government's ability to force the sale of property, but those decisions may not be relevant much longer. The heated debate boiled to the top of the nation's legal agenda Tuesday, when the Supreme Court said it would hear arguments in a Connecticut case early next year.

Alan Weinstein, a CSU law and urban studies professor, predicted that the Supreme Court would back off "in a nuanced way" from a history of deferring to cities on renewal projects. He expects lower courts to get leeway in blocking eminent domain if property shows no obvious deterioration.

Speakers called for sensitivity to property owners who resist being uprooted. They also suggested dropping the "blighted" property designation, a potentially offensive term that may mean only that it lacks modern features like central air conditioning or a two-car garage.

But they said use of eminent domain for economic development must be an option if older cities with scarce open land are to bring in more taxes and ward off the effects of rising poverty. Attorney Craig Miller, who has been on both sides of the issue, said large projects can be thwarted by a lone property owner "who holds a gun to your head."

Speakers said the Lakewood project collapsed because it was too big. The 20-acre project would have demolished stores, 700 apartments and 55 houses.

Dana Berliner of the Institute for Justice, a nonprofit libertarian law firm in Washington, D.C., chided the forum's sponsors for not having any panelists who offered a counter view. Weinstein, who helped organize the forum, talked to Berliner about participating but said he excluded her because she refused to see both sides of the argument.

The Institute for Justice has opposed eminent domain on behalf of property owners in Lakewood and across the country. The firm argues that it is unfair for government to designate nice buildings as blighted simply because they lack modern features. That is a key point in the Supreme Court case.

Eminent domain, or the threat of it, has in recent years cleared the way for Eastlake's minor league baseball stadium and offices, stores and houses in Fairview Park, Garfield Heights and Shaker Heights. Parma Heights City Council has given preliminary approval to taking land for streets in Cornerstone, a proposed housing and entertainment complex, but Law Director Anthony Stavole expects the city to negotiate deals without going to court.

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Thomas Ott: tott@plaind.com