10/12/2004

Court should condemn eminent domain abuse — The (Hampton Roads VA) Virginian-Pilot, 10/11/04

Editorial Opinion

In 1981, the Michigan Supreme Court OK’d the condemnation of a Polish neighborhood in Detroit to make way for a new Cadillac plant.

Ever since, too many municipal officials have assumed they had carte blanche to take title to one person’s land and then sell it to someone else pledging to extract more jobs and taxes from it.

That’s why it’s welcome news that the U.S. Supreme Court has decided to intervene. It has taken up an outrageous case of eminent domain abuse on appeal from Connecticut. The case permits the court to curb a surge in condemnations motivated solely for economic development, not for the legitimate reasons of clearing slums and blight, or public necessities, such as roads, schools and hospitals.

State constitutions allow local governments to take private property for “public use.” The 1981 Michigan ruling had the effect of distorting “public use” by expanding it to mean public benefit. Property rights advocates rightly portray this as eminent domain without limits.

How far the bounds have been stretched is illustrated in the Connecticut case the Supreme Court has agreed to hear. New London leaders, faced with a deteriorating tax base and rising expenses, decided to sacrifice an old waterfront neighborhood on the altar of economic development. The New London council took the Fort Trumball neighborhood and conveyed it for $1 a year of rent to a developer promising upscale homes, hotels and offices.

Hampton Roads officials are not immune to similar temptations. A few years ago, the Virginia Beach City Council condemned an Oceanfront restaurant for a garage to serve visitors and guests of a resort hotel, citing “public use.” But a Virginia Beach judge, H. Thomas Padrick Jr., saw it for the subterfuge that it was. He found that that the hotel, not the public, was the principal beneficiary of the garage and halted the taking.

In the end, the restaurant’s owners lost their business, but the judge’s decision leveled the playing field in the subsequent negotiations for its sale and they got more money.

An example more closely resembling the issues in the New London case occurred two years ago in Chesapeake. A shopping center builder asked for the city government to pave his way into valuable, but bottle-up, land just off Battlefield Boulevard. Not literally pave it with road crews, but figuratively with eminent domain.

He pledged $4 million to build the road, sparing taxpayers the expense. In return, he asked the council to condemn two gas stations whose owners had refused to sell their land to the developer.

The road to the shopping center would have gone through the gas stations. The enthusiasm for the deal was motivated by the windfall it would have created for the city treasury.

Public opposition and wiser heads prevailed, but barely. The move was blocked on a vote of 5-4.

That the vote was so close suggests how much the Michigan case of two decades ago has eroded private property protections that once were taken for granted.

Earlier this summer, the Michigan Supreme Court reviewed the principles established in the Detroit cases and admitted the decision was a mistake. It reversed course, effectively outlawing condemnations solely for reasons of economic development. Let’s hope that’s a harbinger of a ruling from the nation’s highest court.


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