10/21/2004

Court must limit useof eminent domain — The (Northeast OH) News-Herald, 10/21/04

Editorial Opinion

Whenever you see the term "eminent domain" in the paper, you know one thing for certain - some governmental body is attempting to take property away from an unwilling private owner.

If the rightful owner were willing to sell his land, that person obviously would reach an agreement with the city, state or other governmental unit that is orchestrating the land grab.

The purchase price would be agreed upon, the governmental unit would write a check, and the deal would be closed.

But in many instances, the government wants land that the owner does not want to sell. So the government goes to court, files an action for eminent domain proceedings and - virtually every time - the court allows the government to take the property.

It was through the use of eminent domain that the city of Mentor took the Mentor Lagoons away from owners Jerry and Rick Osborne.

The Osbornes didn't want to sell. They wanted to develop their land. They had visions for its future that would have been attractive, visionary and in the best interests of the city in many positive ways, not to mention their own best interests as the developers.

Mentor citizens, by a majority referendum vote, authorized the city to proceed to acquire the Lagoons through eminent domain.

Under the pressure of the eminent domain lawsuit filed in Common Pleas Court by the city, the Osbornes, rather than going through a trial, agreed upon a purchase price and sold the Lagoons to Mentor for something more than $8 million.

So Mentor paid the Osbornes for the land, possibly fulfilling the "just compensation" element of the Fifth Amendment.

Let's just say that Mentor is now the proud owner of the Lagoons, the city satisfied the court that it had a need for the land and the issue is settled and no longer debated.

Similarly, the Lake Metroparks system bought Camp Kline in Concord Township for an agreed-upon price under the pressure of a pending eminent domain court action.

Syndicated columnist James Kilpatrick wrote a thoughtful article on the subject in these pages Monday in which he noted that the Bill of Rights stipulates that private property shall not be taken for "public use" without payment of just compensation.

Both the city of Mentor and the parks system offered persuasive arguments to substantiate the public-use element of their eminent domain proceedings.

A far different usage of eminent domain is one that some governmental bodies employ to acquire property from an unwilling owner or owners so that it can be developed in a way to produce greater real estate tax revenues for the governmental body.

Lakewood tried taking homes away from people who had lived in them for many years so the land could be developed commercially to produce more taxes - and ran into a buzzsaw of opposition that gained national attention.

The issue came to a vote of the people of Lakewood, and the city lost.

There is another hotly contested eminent domain case in Bainbridge Township in which the property owners, the Cipiti family, are also fighting the taking of their property by the township for use as a park.

Kilpatrick wrote of a land grab that ended up in the U.S. Supreme Court because the seizure promises no public use at all.

The case involves the city of New London, Conn., which wants to take the home of a woman, pay her market value for it, demolish it and then lease it to a private developer for the next 99 years.

The woman, Suzette Kelo, is fighting the city tooth and nail. As Kilpatrick noted, the proceeding has nothing to do with slum clearance or the elimination of blight, and everything to do with raking in more tax revenues to pad the city's coffers.

There is good reason for having the laws of eminent domain - when the property that is acquired is to be used for a legitimate public purpose.

But eminent domain should not be used by government, at any level, as a routine way of doing business to grab private property or as a means of coercion to deprive rightful owners of their land.


The news-Herald: www.zwire.com