10/24/2004

Riverfront planners watching high court eminent domain case — (Memphis TN) Commercial Appeal, 10/24/04

By Tom Charlier

A Connecticut legal battle that has made its way to the U.S. Supreme Court could help determine whether Memphis uses eminent domain to seize the downtown acreage it covets for an expansive riverfront redevelopment.

The high court late last month agreed to hear a case arising from a waterfront development project in New London, Conn., that bears similarities to the one envisioned in a 50-year, $292 million plan of improvements along the Mississippi River in Memphis.

Proponents and critics of the plan say they'll be watching the court's ruling in the New London case because it's likely to determine when and how governments may seize private property for economic development projects.

"I think it will be very telling," said John Gary, vice president of Friends for Our Riverfront, a group that has opposed portions of the plan set forth by the Riverfront Development Corp., the nonprofit group guiding the city's efforts to remake its waterfront.

While stressing that he'd prefer to use other means to obtain property, RDC president Benny Lendermon said eminent domain is "an option that we've always considered."

The New London case, he said, "may have some bearing on it, one way or another."

The Connecticut dispute began when officials announced plans to raze a working-class neighborhood to make way for a hotel, health club and offices along the Thames River. As in the Memphis proposal, a major goal of the development is to attract people to the waterfront.

However, several homeowners sued, calling the plan an unjustified taking of their property. The Connecticut Supreme Court, in a ruling earlier this year, sided with the city's claims that the promise of additional tax revenue justified the condemnation of the waterfront property.

The New London case is the latest of several focusing on eminent domain. It follows a Michigan Supreme Court ruling this year that overturned a two-decade-old decision allowing Detroit to raze an ethnic neighborhood to accommodate an auto plant.

With more and more cities turning to redevelopment projects to boost their sagging budgets, the Connecticut case has ramifications nationwide, officials say.

Municipal leaders argue that cities should be able to use eminent domain to revitalize downtowns and neighborhoods.

"If the court takes away this tool that has 50 years of precedence, where will cities find the revenues to do the things they are legislatively charged to do?" said David Parkhurst, principal legislative counsel for the National League of Cities.

But property rights groups contend that in employing condemnation, cities often have strayed from their constitutional charge to transfer the property for public use. In thousands of cases, the private land has been taken for the benefit of private developers and businesses, said Bert Gall, a staff attorney for the Institute of Justice in Washington, which is representing the New London homeowners.

"Public use is not condominiums. It's not offices, it's not retail," Gall said.

In Memphis, the plan pursued by the RDC would revamp a five-mile stretch of the riverfront. It includes mixed-used commercial development, including high-rise towers, in the historic promenade area along Front Street, construction of a lake and a 50-acre land bridge to Mud Island and redevelopment of current industrial sites.

In a recent report assessing the RDC plan, the Urban Land Institute raised the prospect that eminent domain might be needed.

"Given the critical amounts of land needed for riverfront development, this tool may become important to the RDC," the institute's report said.

Still, RDC officials say they'll try to avoid condemnation. To obtain the promenade area, they plan to negotiate with the heirs to the Memphis founders who set it aside for public use.

"I'd rather not even have to consider it (eminent domain)," said John W. Stokes, chairman of the RDC board.

Lendermon said he remains confident the promenade area can be acquired without eminent domain. He said a condemnation case there would be "very convoluted" because the owners — the founders' heirs — number in the hundreds and don't have direct use of the land because of an easement held by the city.

"You're condemning these rights that are somewhat nebulous," Lendermon said.

Other areas where the city might have to condemn land for the riverfront project include the industries along the Wolf River harbor.

RDC officials say the court's ruling in the New London case, which is expected as early as next summer, will provide some needed guidelines on the use of eminent domain.

"I think the pendulum has swung away from condemnations that used to go through pretty easily," Stokes said.


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