Eminent Domain Watch: 08/15/04

8/19/2004

CA Airport Plan is Defeated

Airport Expansion Dumped

By M. C. Naylor

Despite the loss of three federal grants comprising 90 percent of the $7.4 million it would cost and the possibility of repaying $300,000 for already-spent funds, the Oakdale City Council voted down a proposal Monday night to expand the Oakdale Airport through condemnation procedures.

The action, made on a 3-2 split vote, also provided a win for JLG Holsteins, who opposed the Eminent Domain process on 2.7 acres of its property. The argument posed by an attorney for the firm was countered by the City Special Attorney for Eminent Domain on the grounds that it did not meet a "legal" definition for public necessity.

The public hearing bordered on acrimony at several points, and the positions weaved back and forth between point and counterpoint throughout the testimony. However, the decision finally hinged on two key elements out of three findings required in the Hearing of Necessity in order to approve an eminent domain resolution.

These concerned the interpretation of public need and whether that public need would be served. The other focal point of discussion was that of safety at the airport.

The proposal before the council was the acquisition of portions of two parcels of property adjoining Oakdale Airport owned by JLG Holsteins and by Oakdale Commercial Feed. An original proposal was for acquisition of 49.85 acres of land, that city staff stated in its proposal was required for safety reasons and to accommodate larger aircraft at the airport.

The proposal also stated that $4.7 expansion would also increase Oakdale's ability to provide passenger and cargo services, and would expand the present facilities from 117 to 160 acres. A total 1,380 feet would have been added to the runway and additional hangers constructed on part of the property. Both properties are located south of the airport, the JLG Holstein portions on Laughlin Road and the Oakdale Feed property adjacent to and north of the airport and east of OID's south main canal.

At Monday's hearing, City Administrator Bruce Bannerman said the original proposal was amended to request acquisition of only 2.7 acres of the JLG Holsteins property, in a compromise that would move fill to other portions of the proposed project and relocate the added hangers. A proposal to acquire a 7.64 parcel of that property was dropped. The change would only have condemned JLG property directly in the runway extension area.

According to the proposal, the "necessity" for the action was determined since the construction project is currently out to bid, and part of the project requires relocation of the Oakdale Irrigation District south main canal that must be done when the canal is empty, before the 2005 irrigation season beginning Sept. 1.

In Monday's action, Councilmember Robert Deklinski made the motion to pass the Eminent Domain property acquisition on the JLG Holsteins portion of the property and Councilmember Britta M. Skavdahl made the second, with these two members composing the supporting votes on the council. Each of the three other members voted "no" to the motion. These were Mayor Pat Kuhn, Mayor Pro Tem Farrell Jackson and Councilmember Phil Rockey.

In what can only be described as a complex decision, each of those members made their decision on a wide variety of reasons, and the arguments by the JLG attorney and the special legal counsel for the city proposed quite differing concepts of the public interest at stake.

Acrimony and Contest

Testifying on behalf of JLG Holsteins' opposition to the condemnation was Attorney Bret Dickerson of the Modesto firm of Gianelli and Fores, who contested the three basic premises upon which the proposal was made. He also encountered immediate challenge from Councilmember Robert Deklinski. Both the attorney and the councilman spared throughout the remainder of Dickerson's presentation, and Deklinski, at one point, threatened to terminate the attorney's presentation.

Dickerson described his testimony as both procedural -to place an objection to the Eminent Domain process on file- and substantive -to present specific objections to the proposal based upon the city's three stated reasons. These, he said, were that the City Master Plan proposes expansion of the airport, that there is a public need for expansion of the proposal for accommodating passengers and commerce, and that there is a safety issue at the airport.

After an initial presentation of his position, when he began providing detail and making a position, Councilmember Deklinski interrupted Dickerson, stating the attorney was beginning to talk jargon and gibberish and was becoming belligerent toward the council.

"If you don't tone it down," said Deklinski, "I'm going to ask you to leave.

Later, during an exhaustive exchange over the question of whether or not JLG Hosteins had a motive of objecting to the expansion because the owners wanted themselves to build hangers on the property, there was another exchange.

Both Dickerson and the propertyowners said that a conversation inferring that they could build the hangers on the property if that's what the city wanted was a casual and not a serious remark.

During Deklinski's discussion on the issue, he said that he didn't accept that position. "What you told me (about the hangers) just doesn't wash with me," he said. "You were willing to build those hangers. ..... I have been in law enforcement for over 30 years, and you're not going to con me."

Dickerson responded in kind, stating that a moment before Deklinski had accused him of being belligerent, now he was. "Now I've been insulted," said the attorney. "I have answered your questions honestly. Is this where this is going!" he exhorted.

Public Misguided

In his presentation, the JLG Holsteins attorney, Dickerson, said there was no safety issue at the airport. He said that similar cities throughout the Valley have 3,000-foot long runways that adequately serve those communities, and that in the last 20 years, no accidents at the airport had been caused by the length of the runway. They were all found to be based upon pilot error or flying conditions.

Dickerson also said that the expansion was targeted for larger Lear Jet access, that there is no actual need for that level of access based upon the present or projected commercial needs. He further argued that the Lear Jet target was aimed at one present airport client, and that the Master Plan position was based upon projections for the airport use that have not materialized.

According to the attorney, the Master Plan projects an operation rate of 33 per hour at the airport by 2005, when the actual rate of use is six or seven, or about 10 percent of the projects. He also said that Oakdale does not have the facilities to offer that level of operation. Lear Jet specifications call for an even longer runway than Oakdale proposes, he stated, and Lear Jet owners would seek facilities like Stockton or Modesto that have the type of ancillary accommodations afforded that level of air service.

"The airport is not suitable for every operation out there," said Dickerson. "It is suitable for the majority of operations, not the exception." He cited a number of other examples and reasons to support his three positions, concluding that there was no genuine public necessity for the airport expansion.

"The public was misguided by the expansion proposal," he declared. "As it stands now, there is only one operator out there that needs an extended runway. .... For what's going on, a 3,000-foot runway is quite adequate.

"There are a lot of justifications, but they don't add up under scrutiny."

Dr. Jack Alpers, veterinarian for JLG Holsteins, also testified, stating that the nationally known business firm had been in its location for 30 years and deserved some consideration. He also said the runway would be 7,500 feet closer to the animals, which was not desirable for either the firm or other ranchette owners in the area.

Public Need Defined

Drawing out a position that was technical and largely lost in the discussion, City Special Attorney for the Eminent Domain Neil Costanzo, of Hargrove and Costanzo, said that JLG Holsteins' position was based upon a "literal" rather than a "legal" concept of public need.

He said that courts have consistently ruled that municipal councils have the authority to determine public need based upon the larger public purpose of a project and the consequent additional enhancement of its value to the public. The JLG Holsteins position, he said, was improperly focused upon the term "necessary."

"The real question is does it advance a proper public purpose," said Costanzo. "It is within the perview of the council to determine the public necessity." He also said that the FFA has stated what is needed to enhance the "safety" and "usefulness" of the Oakdale Airport, and it is those standards that were utilized in approving the federal grants for the project.

Councilmember Britta M. Skavdahl asked City Attorney Thomas Hallinan his position on the matter, and he also supported the special attorney's interpretation.

"What courts have constantly supported," said Costanzo, "is a 'legal' argument," rather than the literal one positioned by JLG Holsteins' attorney.

City council members varied widely on their reasons for voting the way that each one did, with no two members having exactly the same position or basis for their vote (see accompanying story).

After the vote, it was determined there was no need for discussion or action on the second of the Eminent Domain public hearings, on the Oakdale Commercial Feed property, and it was removed from the agenda.

Vote nixes Oakdale airport plan

By Inga Miller

A $4.7 million expansion project at Oakdale Airport is off the books after property owners opposed selling their land and the City Council decided not to take it through eminent domain.

Negotiations between the city and the landowners had stretched out about a year.

"The property is essential to the project, so without the property, we don't have a project," City Administrator Bruce Bannerman said Tuesday.

The Federal Aviation Administration awarded grant money to pay for 90 percent of the cost, and the money will be returned, Bannerman said.

"I'm very disappointed because a year ago, I was under the impression that these were all willing sellers," Mayor Pat Kuhn said before the council's 3-2 vote Monday night, but added that she could not make a "finding that this is in the greatest public necessity."

Of all the people basing aircraft at the airport, a fraction live within the city limit, she said. City taxpayers subsidize the cost of running the airport to the tune of $15,000 to $25,000 per year.

Councilmen Farrell Jackson and Phil Rockey joined Kuhn is voting against seizing the property through eminent domain, citing a lack of necessity for the project.

The expansion project would have included a longer runway, as called for in the airport's 1996 master plan. A longer runway would accommodate larger and heavier planes. Now, turboprops and small jets are free to land on the 3,020-foot-long strip, but some must do so without cargo or passengers.

Under the proposal, the runway would have been lengthened 1,380 feet. The extra length would have made it safer for all planes, said Sherman Porter, airport manager.

The project required 2.7 acres from JLG Enterprises Inc., which operates a bull ranch on the land, and 39.5 acres owned by Oakdale Commercial Feed Yards.

The council acted first on the JLG Enterprises land, and after deciding against eminent domain, did not need to consider acquiring the other land.

"I think it will be a lot better for the community," said Jack Lerch, part owner of JLG Enterprises, after the vote. "We don't need it, I don't think."

The expansion project also called for more hangar space, which is now subject to a waiting list. The master plan identified hangar revenue as a potential way of bringing the airport out of the red.

"I think our long-term goal is to make this airport self-sufficient, to find a niche market. And citizens inside the city limit deserve for it (to pay for itself)," said Councilwoman Britta Skavdahl, who voted for eminent domain.

"Certainly, it has been a project long in the making and not one that I am particularly willing to back out of at this juncture."

She noted that the city is likely to be on the hook for $400,000 in FAA grant money already spent on planning.

Councilman Bob Deklinski cast the other vote to proceed with eminent domain, citing the safety factor of a longer runway.

Absolute Power to Communities to Declare Land "Blighted"

Three aspects of an eminent domain controversy in Missouri

Using eminent domain for economic gain under fire; could affect plans for Triangle

By Jack "Miles" Ventimiglia

Cities across the nation feel tremors from a case that could limit their use of public power for private gain.

"It's the shot heard round the world," said Bert Gall, attorney with the Institute for Justice, Washington.

Some cities use the legal sledgehammer of eminent domain as an economic development tool rather than for traditional public uses, such as building an interstate or clearing a slum, Gall said.

Several Northland cities use eminent domain for development. Kansas City seized private Platte County land in 1996, for example, for future rather than imminent business development near Kansas City International Airport. Now Liberty threatens to condemn Triangle business properties – including Crossley Ford – if owners refuse to sell their land to make way for planned retail development.

Ron Kincaid, owner of Kincaid Auto Service, said that next to losing his business, the worst thing about having the threat of condemnation hanging over his head is having no clue when the hammer might fall, and then having 90 days to clear out.

"All we've heard is silence. I assume that means they're just going to kick us out without saying anything to us," Kincaid said.

The city has condemned no Triangle property and is preparing official "offer letters" for property owners, Liberty attorney for the Triangle, Chris Williams, said Friday.

"The council passed the ordinance authorizing condemnation, but the acquisition process is really just getting started," Williams said.

A new decision shakes the legal foundation many cities rely on when using eminent domain for development. The decision targets a landmark 1981 Michigan Supreme Court ruling that allowed Detroit to seize houses and businesses in the Poletown neighborhood to make way for a Cadillac plant. Law schools and texts cite Poletown as a top eminent domain case, and cities across the nation use the decision to justify taking private land for development, Gall said.

"Poletown is the granddaddy of all eminent domain cases concerning economic development," Gall said. "The (land) was turned over just on speculation that it would create more jobs, it would create more taxes. ... You ended up destroying this whole neighborhood and the project ... ended up being a flop and did not create all the jobs and the revenue the city thought they were going to get."

Against this legal backdrop, the Michigan Supreme Court – the same court that established the precedent – gutted the Poletown decision July 30. The lead opinion in the Wayne County, Mich., case targets the Poletown decision: "Poletown's 'economic benefit' rationale would validate practically any exercise of eminent domain on behalf of a private entity. After all, if one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore' or the like."

Eminent domain serves the public when an area would not develop without government intervention, St. Louis attorney Stanley Wallach said. Wallach, the Missouri Bar Association's Eminent Domain Law Committee chairman, said the problem is that government or developers may abuse the authority.

"Where do you draw the line?" Wallach asked.

The U.S. Supreme Court may answer that question.

The court is considering whether to review the Connecticut Supreme Court's 4-3 ruling upholding eminent domain – a ruling the state court based in part on the 1981 Poletown decision.

If the High Court declines to hear the Connecticut case, cities such as Liberty can continue using eminent domain for development. But Gall said chances are good that the High Court will hear the Connecticut case of Kelo v. New London.

"We're optimistic that the Supreme Court is going to take a look at what happens when 'public use' has been interpreted all over the board by a number of different states," Gall said. "When you've got constitutional rights that are being protected in some states but violated in other states ... that is generally something the Supreme Court is very interested in taking a look at."

At Crossley Ford, Todd Crossley said the Supreme Court should review the matter. The court's decision could affect whether the $40 million-per-year Ford dealership leaves Liberty or stays.

"(Eminent domain) makes sense when you're putting in roads and bridges, but to take private property from one citizen and give it to another citizen – just because they're going to make more money with it – doesn't seem right to me," Crossley said.

If the High Court supports the Connecticut decision, using eminent domain for development is unlikely to change in Missouri, which is described as having "one of the worst records on eminent domain abuse in the country" by the Institute for Justice. The institute's Castle Coalition states that Missouri courts "approve nearly every condemnation, no matter how private the purpose or how unnecessary the condemnation. Missouri law and practice desperately need reform to stem the tide of eminent domain abuse."

Kincaid said his personal experience in the Triangle is that the way eminent domain laws are applied, no one's house is safe.

"They could do that with my house," Kincaid said. "My house was built in '61. Hell, they come in there and say, 'If we had a new $300,000 house built on this site we could get more property tax off it so we're going to take your property.'"

Kincaid's idea about using government power to take houses is occurring in the Triangle, where Liberty plans to take the Rev. Marion Hunderdosse's house and church. Taking houses is the basis for the Connecticut case, with the city of New London ready to demolish waterfront residences to make way for office buildings.

A High Court reversal of the Connecticut decision could set Liberty Triangle development on its ear.

"Even if they just limit (the decision to Connecticut) ... it may very well send people in 'Jeff City' scrambling to make our laws compliant if they're deemed to be in conflict with that ruling," the Missouri Bar's Wallach said.

The city's attorney, Williams, said he is aware but not concerned that the Supreme Court could take up the Connecticut case.

"There are so many 'what ifs' that I don't know that the city could take any different approach than what it's taking now," Williams said. "You've got to rely on the law the way it is today and continue with the program."

Gall said there is a strong case for the Supreme Court to rein in eminent domain.

"The Fifth Amendment is very clear. It talks about public use ... about bridges, roads, courthouses," Gall said. "It's a very persuasive argument and a 'plain meaning' argument that would appeal to some of the conservative justices that are on the court."

Gall said the High Court might not decide whether to hear the case until fall and a ruling from that point could take months.

Waiting is not an option, Crossley said. Missouri's eminent domain laws give cities all the time they need, but rush property owners into moving.

"We'd have 90 days to object and then another 30 days to file a court date, so within 120 days we could be out," Crossley said.

An appeal would not prevent the city from demolishing the dealership and turning the land into a shopping center.

The Crossley family bought property and plans to rebuild just across Interstate 35 from Liberty, in Kansas City-North, Crossley said.

The city is unlikely to speed the land acquisition process to hedge against a possible, negative Supreme Court ruling, Williams said.

"To some extent the city's ability to acquire the property depends on making sure you have the funds available," Williams said.

Wallach said no Missouri community is likely to halt eminent domain activity while the Connecticut case is pending.

"The light's still green. Typically judicial opinions look forward and don't try to undo things that have already happened. You can imagine the nightmare scenario if somehow the High Court were to say, 'Tear down all those malls and give the property back to people.' I don't think that's going to happen," Wallach said. "But what happens if you're halfway through the process? ...

"It may throw a monkey wrench into that work."

Some business owners in the Liberty Triangle hold pond scum in higher regard than city officials.

By Jack "Miles" Ventimiglia

They say their businesses are threatened with condemnation, that prices they have been offered for their land are ridiculous and they have no idea when a city employee might knock at their doors to say they have 90 days to get out. Under the circumstances, their contempt for city leaders is understandable.

City officials, on the other hand, have a clear and excellent vision for the Triangle. Instead of a patchwork of assorted types of businesses, they see major retail outlets such as Lowe's generating millions in sales tax revenue - money needed by all Liberty residents to provide for city services, such as streets and sewers. They are looking at "the big picture" for the community's greater benefit.

There may be no way to make everyone on both sides happy, but one thing is certain - a lack of effort generates only a lack of results.

Several Triangle business owners said they not only wish to stay in Liberty, they would like to hire more employees and to expand if only they could find a location. If the city wants more sales tax revenue – a fundamental reason for developing the Triangle – then why stop at replacing businesses when the city could also keep the businesses it already has? Triangle business owners have asked that question, but say the city has not provided them an answer. City officials have not offered any type of relocation plan or help. Feelings in the Triangle run pretty hot against the city.

For the moment, the city has the upper hand. Missouri law gives almost absolute power to communities to declare land "blighted" and to seize that land for development reasons. Under such circumstances, city leaders could get downright arrogant if they chose to, and the business owners say they have.

But the high hand Liberty held at the start of the process to develop the Triangle is no longer a sure winner. The courts are beginning to cast a cold stare in the direction of communities that use the public power of eminent domain for private gain. Time could be against the Liberty's leaders.

Time is a factor because developing the Triangle fully could take several years. This means the city may not act to seize some of the Triangle property until 2006. In the meantime, the U.S. Supreme Court could step in, and though such intervention would be indirect, the outcome could gut Triangle development plans.

The Supreme Court is considering whether to take up a Connecticut development case. The case involves some perfectly fine sea front houses the city of New London wants to demolish to make room for office buildings.

If the court does not take up the case, Liberty city officials have nothing to worry about. But if the court does decide a review is needed, all bets are off.

One possible outcome is the court could uphold the loose definitions states have been using to interpret blight any way they choose if the end result is more money for government. But an attorney with the Institute for Justice in Washington, Bert Gall, said the Supreme Court is conservative in its interpretations of the Constitution and is not likely to support government's tax greed as justification for taking private property from one person to give that property to another.

Instead, Gall said, the Constitution's plain language is most likely to appeal to the justices and if that happens then Connecticut, Missouri and other states that use eminent domain for building development may lose their tool.

Again, there is no certainty that the Supreme Court will hear the Connecticut case and there is no certainty how the court will rule. Still, some questions Liberty leaders should be asking themselves are:

What happens if the court does rule?
What if the finding is that most cases of eminent domain for development are unconstitutional?
What happens if the ruling comes while Liberty is only partly through the $62 million Triangle redevelopment plan?

If the Supreme Court does reverse Missouri's habit of using eminent domain for financial gain, then to complete the Triangle Liberty city officials would have to rely on the good will that exists between the city and those business owners that remain in the Triangle. How much would the city's good will count for right now? All of this is based on a lot of "ifs" and here is one more... If city officials are wise, they will take nothing for granted.

An Eminent Domain Primer: State law favors government, not public
By Jack "Miles" Ventimiglia The founding fathers wrote that the government could not take private property except to provide public-owned facilities or infrastructure, said Bert Gall, attorney with the Institute for Justice, Washington. "That's pretty much how courts interpreted the 'public use' requirement up until the (1950s)," Gall said. "At that point, we started getting into the whole urban development craze." Urban development focused on cleaning city slums. Over time various state-level courts loosened the interpretation to let their local governments take property for economic reasons, such as increasing tax revenue or creating jobs. Increasing sales tax revenue is a leading reason why Liberty City Council supports the Liberty Triangle development. Mayor Steve Hawkins said the city would use condemnation if necessary to remove business owners who refused to sell to the developer. Local government has great power to employ eminent domain for economic purposes, St. Louis attorney Stanley Wallach said. Wallach, the Missouri Bar Association's Eminent Domain Law Committee chairman, said individuals have had no luck resisting that power. "In Missouri, the challenges have gone nowhere in the state court system, because the courts view it as a legislative decision and the legislature has invested the 'local legislatures' with virtually absolute discretion to declare something blighted as long as they follow the procedures," Wallach said. "If the federal courts step in and say it's a federal Constitution issue, it will make life very interesting." Whether the U.S. Supreme Court will step in remains unclear. Between 1998 and 2002, cases of government using or threatening to use eminent domain to take private property for development skyrocketed to more than 10,000, Gall said. Many cities cite the Michigan Supreme Court's 1981 Poletown ruling to justify their actions. "Cases like Poletown are responsible for that because they opened the floodgate," Gall said. "When a power like that is available to be abused, local governments and developers are going to abuse it." The Michigan Supreme Court last month rejected its own Poletown decision to rule against using eminent domain for development. Different uses of eminent domain for development between states - including Michigan and Missouri - increases the likelihood that the U.S. Supreme Court will review the matter, Gall said.

Gladstone Sun News www.gladstonesunnews.com
Eminent Domain

Airport Expansion Could Rely on Eminent Domain

By Kati Bexley

Eleven Araquay Park residents fighting the expansion of the airport into their neighborhood have been given new offers on their homes by the St. Augustine-St. Johns County Airport Authority.

Authority board members have been negotiating with the property owners east of Casa Cola in Araquay Park who have refused to sell their property to the airport.

Last week, those residents received letters from the authority offering to buy their houses for 40 percent above the appraisal.

Monday, the authority passed a resolution 4-1 allowing it to use eminent domain to take the properties at that pricing structure.

Airport attorney Mark Arnold said the 11 property owners opposing the airport were sent letters explaining eminent domain.

"The letter outlines the statute and gives them a copy of the statute," Arnold told the board.

Board member Wayne George asked the resolution to be passed with the condition that three weeks prior to the eight-week deadline the property owners are given a letter of notification.

"In essence notifying them of what the resolution said," George said.

Only board member Joseph Ciriello voted against the resolution.

"It's a law and that's what you go by and you're a lawyer, but it's a lousy law," Ciriello told Arnold. "I think a person's life and homes are worth more than 40 percent to them."

Ciriello had asked Arnold at a board meeting in March how the airport could prove to a judge that new hangars are for a public purpose. Arnold said the profits the airport would make from the expansion would help get it off the tax roll. That would be enough justification to allow the authority to take the land, he said.

Mary McElroy, 76, is one of the 11 property owners resisting the board. She said even with the added 40 percent the board's appraisal is too low.

"They're trying to take me for a ride, in my opinion," McElroy said Tuesday.

She said her family lived in the area before the airport was built. Her home has an irreplaceable view on the marsh, McElroy said.

"There is no place in St. Johns County that I can buy a house where I can look across the Intracoastal Waterway and see homes on Vilano Beach," she said.

McElroy's daughter-in-law, Carolyn McElroy, lives two doors down from her. Carolyn said her home was built in 1951. She said the board had an archaeologist look at the homes at least 50 years old in Araquay Park.

"This is mandated by the state, from my understanding," Mary said. "Some of these homes were built in the 20s and they've already been knocked down, so there must not be too much history can do to stop it."

Carolyn's son lives across the street from her and the board is going after his property as well, she said. The McElroy family has a lawyer and plans to sue, they said.

At the authority meeting July 14, it was shown that airport activity is up 16,274 in operations, or takeoffs and landings, over the same time last year. That brings the total number of operations to 71,000, making the airport on track to reach the anticipated 140,000 operations for the year.

Carolyn said Tuesday she might not be able to save her house but she's going to keep fighting. "We'll go down swinging, as they say," she said.

Ed Wuellner, Airport Authority executive director, did not want to comment Tuesday on the passing of the resolution.

Few Gains Seen From Land Fight

Legal battle has cost taxpayers millions, delayed compensation to Pappas family

By Michael Squires

Carol Pappas sat in her living room on a recent morning and contemplated what might have been.

These were to be golden years for the 74-year-old woman who left Athens a young bride half a century ago for a dusty gambling town. The man who brought her to Las Vegas promised her that.

John Pappas returned to his native Greece to marry young Carol and bring her to Las Vegas, where he had become a successful businessman.

John believed in Las Vegas' future. He believed, in particular, in the future value of property near the intersection of the city's most famous streets.

"My husband (who passed away in 1981) told me many times, 'When I die, you'll have this property to support you,' " Carol said. "He told me, 'This is going to be your retirement.' "

Instead, the 7,000-square-foot property at Carson Avenue and Las Vegas Boulevard is "the worst thing that happened" to her.

Las Vegas took possession of the land in 1993 in a controversial use of eminent domain and turned it over to a consortium of downtown casinos for a parking garage. Carol would peer through a chain-link fence as the businesses, which provided her with more than $60,000 a year in income, were bulldozed for the Fremont Street Experience garage.

With it went her golden years, she said. The ensuing 11-year legal battle has delayed any compensation for the land. It has depleted her savings, substituted depositions and hearings for vacations, and brought untold stress, she said.

"They took away from me the income I could have enjoyed to do some things. They did a lot of damage to myself. I don't know what else to say. We've been through such hard times all these years."

This week, the Las Vegas City Council will consider settling with Carol and her sons, Harry and John, for $4.5 million. The property's value has been estimated anywhere from $450,000 to $7 million. If the proposed settlement fails, as a similar effort did four years ago, a District Court trial to set the land's value is scheduled for Sept. 21.

More people than the Pappases have felt repercussions from the city's decision.

So far taxpayers have shelled out more than $12 million to acquire the land and mount a legal defense.

The two law firms Las Vegas hired to defend eminent domain cases associated with the garage property have received $1.6 million. More than $400,000 was spent on the Pappas case alone. And the costs, which don't include the time of city staff attorneys, continue to mount.

Many wonder to what end. City officials have called the block inhabited by the garage and neighboring Neonopolis a "dead zone." Justified as a way to end blight and stop downtown's decline, the small businesses driven out have been slow to return.

And Neonopolis, the beneficiary of $32 million in taxpayer largesse, has become synonymous with failed redevelopment in the minds of many Las Vegans.

"It's more blighted now," said former Las Vegas City Councilman Steve Miller, who recently was deposed by the city's attorneys on his role in the downtown redevelopment agency in the early 1990s. "There were no vacancies before. There was no boarded up property. The Pappases owned an immaculate little strip center where I used to go have lunch. Now it's a mainly empty parking garage with a defunct restaurant."

And the longer it's empty the longer taxpayers wait to be repaid the millions spent on it.

Fremont Street Experience repays its $5.7 million debt with revenue from the garage's retail space. To date, retail leases have generated $8,275 for city coffers.

Race Rock, the motorsports-themed restaurant, closed in 2001. Joe Schillaci, president and chief executive of the Fremont Street Experience, is still looking for "the right kind of tenant" to fill the empty storefront.

Walgreens opened in another space but has yet to generate enough revenue to trigger payment to the city.

And the droves of tourists for whom the garage was built, despite the 48 casino-owned garages and parking lots in the area, have yet to appear in the anticipated numbers.

"That thing sat 90 percent empty for years," said Harry Pappas, standing on the garage's empty top floor one recent afternoon. "They didn't need parking. That's just the B.S. they fed the public."

Some of the spaces are filled through agreements with businesses and the courts. The garage is busiest weekday afternoons, not at night when the lighted canopy, the attraction seen as key to downtown's redevelopment, is in motion.

"There is a need for the garage," Schillaci said. "It's important for future growth."

Downtown Las Vegas in the early 1990s didn't have the optimism and expectations of today.

Fremont Street had long ago been eclipsed by the Strip, which is outside city limits.

"The entire city tax base is the downtown; the whole economy was about gaming and you had one attraction after another being built on the Strip," said former Las Vegas Mayor Jan Jones. "Why would anybody come downtown?"

The Strip succeeded, in part, because it had more of what downtown lacked: land.

Sold off by the railroad in 300-foot-by-400-foot lots and subdivided over the years, downtown had a patchwork of owners. "You have to hold the equivalent of Middle East peace talks to buy land down there," said local historian Michael Green.

The solution for downtown's decline, Jones recalled, was to create an attraction to compete with the Strip's volcanos and pirate duels.

Officials thought a lighted canopy over Fremont Street would draw tourists back and, in effect, make the street into a megaresort. The city agreed to spend $6.4 million and use eminent domain to acquire land for a Fremont Street Experience parking garage on the block bordered by Fremont Street and Carson Avenue, and Fourth Street and Las Vegas Boulevard.

Armed with the Legislature's assurance that redevelopment is a "public use," the city began acquiring property. Until they ran into the Pappases, the city had used eminent domain for redevelopment 143 times without a lawsuit, recalled City Attorney Brad Jerbic.

The courts' interpretation of "public use" had grown beyond roads, utilities, government buildings and the like as local governments sought to clear slums with eminent domain.

The U.S. Supreme Court ruled in 1954 that a Washington, D.C., slum-clearing effort was constitutional even though the land was given to private developers. The Michigan Supreme Court in its 1981 Poletown decision backed Detroit's use of eminent domain to seize homes and businesses for a General Motors plant. Economic revitalization to root out the social and economic blight of high unemployment justified it.

The Pappases, however, failed to see the lawfulness of the city's taking. Nor did they see blight anywhere on the tidy block.

The city offered $380,000. They later boosted it to $480,000. As a potential casino site, the family, which owns nearly two dozen land parcels in Clark County, insisted it was worth $7 million and sued. The family rejected a $4.5 million settlement offer four years ago but now is willing to settle for that amount.

"They want to steal your property and tell you what they're going to give you for it," Harry Pappas said. "If you don't like our price? Then get your hands off our property."

In a 1996 ruling he thinks hurt his career, then-District Judge Don Chairez bucked the judicial trend and ruled the city's taking was unlawful. The city hadn't bargained in good faith.

"You have to go with your heart and say, `What is the right thing to do?' " Chairez said.

On appeal, a divided Nevada Supreme Court reversed the Chairez decision and upheld the city's use of eminent domain against the Pappases.

The court cited the Poletown case in Michigan in its ruling. But last month, the Michigan Supreme Court overturned its previous decision, calling it a "radical departure from fundamental constitutional principles."

Finally, in March the U.S. Supreme Court declined to hear the Pappas case.

"We've gone from using eminent domain against a place with no plumbing to using it, in the Pappas case, against a place with not enough parking," observes Dana Berliner, a senior attorney with the Institute for Justice. "That's a pretty significant change."

The libertarian public interest firm in Washington, D.C., filed a brief supporting the Pappases and declared the case among the top 10 abuses of eminent domain nationwide.

"Our founders certainly weren't thinking of casinos when they wrote the words `public use,' " said Berliner. "It's wrong for government to play favorites among its residents and its businesses. When cities use eminent domain in this way in effect they're saying `I like this guy better than this other guy.' "

Constitutional or not, the bad publicity generated by the Pappas case forced Las Vegas to abandon eminent domain in situations in which land is transferred from one private party to another, even in the name of redevelopment. Members of the City Council, all of whom were elected after the Pappas case began, say they have no appetite for it.

On a recent morning, Harry Pappas searched for a piece of paper in his Las Vegas apartment.

He dug through file cabinets filled with documents, crates stuffed with folders, boxes bulging with newspaper clippings. He apologized that the reams of paper, rubble from the fight with the city, leave little room for a visitor to sit.

Harry, the family's most vocal critic of the city's actions, said he was preparing to build a home before the case engulfed his life.

"We're the ones doing without," he said, his voice edged with bitterness. But the city officials and casino owners who brought the hardship on him and his family, "they go home to their gated communities every night. Their lifestyle didn't decrease."

© Las Vegas Review Journal www.reviewjournal.com

Since the publication of the above news item, the situation has been resolved.
The Las Vegas City Council approved a $4.5 million settlement to end the dispute. Council, acting as the Redevelopment Agency, approved the settlement with the Pappas family over the 1993 seizure. The money will be paid from redevelopment funds and will eventually be reimbursed to the city from leases on retail space in the garage.

Mayor Oscar Goodman says the city was ready to "put this unfortunate time behind us."

The seizure of the property, which allegedly cost the family over $60,000 a year in income, was declared a lawful public use by a divided Nevada Supreme Court. The Pappas family agreed to settle after the US Supreme Court declined to hear the appeal.

Municipal Utility District Seeks to Seize Subdivision Land for Sewage Plant

By Arie Wilson

Residents of a small Lake Conroe [TX] subdivision are outraged at a municipal utility district's intentions to use eminent domain to force construction of a water and sewage plant in their community.

The district seeks to claim land outside its boundaries to build the plant, which would serve only the district's residents – not the subdivision where it is located.

About 50 residents of the Capps Addition neighborhood attended the Far Hills Municipal Utility District board of directors meeting Wednesday night to voice their concerns about the sewage treatment plant that the district intends to build at the subdivision's entrance.

The group was forced out after about 30 minutes of discussion.

Homes built inside the Capps Addition subdivision each have independent septic systems. The neighborhood does not belong to any Municipal Utility District.

Jonell Nixon and husband Roy Zboyan, a Capps Addition resident, could lose 4.2 acres of land at the corner of Victoria Street and Cude Cemetery Road through eminent domain to the Far Hills MUD for placement of the water and sewage treatment plant.

Eminent domain laws allow public agencies to take land for public use by reimbursing the landowners the property's appraised value.

In May, the district offered Nixon and Zboyan $40,000 for the land -- about $5,000 above the appraised value. Since then, the couple twice have rejected the offer, which has been reduced to the appraised value of $34,848.

"We don't have a problem with (the amount) they offered," Nixon said. "We just don't want that plant going in there."

Jim Haymon, president of the Far Hills MUD, said the district plans to place the water and sewage treatment facility at the corner of Virginia Street and Cude Cemetery Road.

The plant will have a serving capacity of 1,200 homes – far fewer than the number of houses already built in the district's six subdivisions east of Cude Cemetery Road.

The district's primary lift station, which pumps the district's waste to the Montgomery County Utility District 2 sewage plant at Seven Coves for treatment, already is located on one acre of land adjacent to Nixon and Zboyan's property, Haymon said.

"Currently, we have a contract with Seven Coves that runs out in four years (for waste treatment)," Haymon said. "That plant isn't large enough to support us both, and we'll have to build our own."

Haymon said placing the plant at the Victoria Street/Cude Cemetery Road site is the most financially viable option for the district.

"(The property) is located next to our current lift station, and then it would run right into the plant," Haymon said. "This is what our engineers, financial advisers and attorneys tell us to do, and anywhere else would cost us extra money to our taxpayers."

Two years ago, the French Quarter subdivision development, which lies west of Cude Cemetery Road, was annexed into Far Hills MUD, promising the addition of more than 250 homes to the district. But only six of the homes, costing upward of $200,000, are under construction.

In February, Rob Broussard, French Quarter developer, contacted Nixon and Zboyan on behalf of the Far Hills MUD about buying the land that is now at the center of dispute, pitting the district against Capps Addition.

Broussard lives in Capps Addition on Circle Drive, but he is building a new home in the French Quarter development.

"We were just trying to be neighborly," Broussard said. "The district contacted me and asked me to call (Nixon)."

Many of the Capps Addition residents blame Broussard's development for the sewage treatment facility being placed on their doorstep.

John Vernon's home will be located less than 400 feet from the sewage plant if it is built on Virginia Street. Vernon does not understand why Far Hills is not building the facility within the district.

"I've lived here for over 25 years, and (Broussard) should have to put the plant up there with those high-dollar homes," Vernon said. "They're trying to take advantage of us retired people, but we'll carry them to court if we have to."

Broussard maintains he had nothing to do with the decision of where to place the plant. Considering the repercussions, he would not have gotten involved as a spokesman for the district, he said.

"Looking back, I probably should have asked them to make the phone call themselves," Broussard said.

Residents understand Far Hills' need for a sewage treatment plant, but they are not sympathetic to placing the plant outside of the district and at the entrance to the Capps Addition subdivision.

At the Wednesday night meeting, residents donned name tags that read "Capps Concerned Citizen" and passed around a detailed list of their concerns.

The flier expressed a concern for the environment, cost to property owners in the Capps Addition neighborhood and alternatives to placement of the plant.

Bert Goll, a staff lawyer specializing in eminent domain cases at the Institute for Justice in Washington, D.C., said such grassroots organizations are key to citizens' concerns being heard.

And he expressed concern over eminent domain cases that seem narrowly designed to serve the interests of private developers -- rather than any broad public interest.

"Almost always, there is a relationship between the condemning agency and the developer," Goll said. "You get an unholy alliance between (public agencies) and the developers."

Goll encourages citizens to be aware of the goings-on of local municipalities. Many times, the property owners are the last to hear of plans for condemnation or claiming of eminent domain, he said.

"This is a situation that is crying out for activism," Goll said.

Nancy Martin, an attorney at Winstead, Sechrest and Minick in The Woodlands, said utility districts are within their legal right to claim land outside of the district boundaries if it's for the good of the district.

"The city of Conroe wouldn't be able to take property in the state of Tennessee and claim it's for the public good," Martin said. "But if it's in the area, then they will be able to do it," Martin said.

The principle of eminent domain is laid out in the Constitution under the Fifth Amendment and is governed by the Texas Property Codes. The code requires that landowners receive compensation for the property being claimed.

"If the parties are unsuccessful in negotiating (the value), then the issue will go to a special commissioners court," Martin said. "If the parties don't like what they say, then they can file suit."

But going through the court system would not keep the utility district from using the property, Martin said.

"The district may have a good reason for putting the plant where they are, and that's not the kind of thing courts step into," Martin said. "The court will probably uphold it."

Nixon and Zboyan are not giving up, though. The couple have hired a lawyer and plan to fight to keep their land.

"We bought that land about four years ago and had no intention of developing," Nixon said.

Zboyan said the district's claim of eminent domain is strictly financial.

"I don't think they're doing anything sneaky, just going after an easy target," Zboyan said. "And if it was the only piece of land available, I think they could get away with it. But that's our basic argument that they have so many other places to put it that it's ridiculous."

Arie Wilson can be reached at awilson@mail.hcnonline.net
www.thecourier-online.com.

Normal May Use Eminent Domain in Downtown

By Mary Ann Ford

In June, the Normal City Council voted to use its eminent domain authority – if necessary – to obtain property for a planned downtown hotel/conference center. Earlier this month, another council vote opened the door for similar proceedings to gain land for a new downtown bank building.

In the meantime, court proceedings have begun in a separate eminent domain case, involving land the town needs to widen Hershey Road near Shepard Road in northeast Normal.

Redevelopment, road, sewer or utility improvements are among the reasons municipalities can use their eminent domain authority – a right afforded by the U.S. Constitution.

It gives public bodies like city councils in Normal and Bloomington and some private companies, like utilities and railroads, the legal power to acquire private property for a public purpose as long as the owner is compensated.

But it's not automatic. Government can't just say it wants land, give the owner money and take the property.

There is a system of checks and balances. In some cases, the courts check eminent domain powers. Other times, it's the community.

Take, for instance, a recent case in Lakewood, Ohio, that drew the attention of CBS' "60 Minutes."

The city wanted to replace some homes with expensive condominiums that would bring in more tax money. To proceed with the project, "60 Minutes" reported, the city council had to declare the area blighted so it could take the property through its eminent domain authority.

The council adopted a new standard for the area: a home could be considered blighted if it didn't have three bedrooms, two baths, an attached two-car garage and central air.

Even the homes of council members and the mayor couldn't comply with the new rule.

Residents fought back and eventually voted down the new standards and voted the mayor out of office.

Jack Teplitz, a Peoria attorney and consultant for the downtown Normal redevelopment project, said the Ohio case was extreme and noted the system of checks and balances worked.

Still, the case made the Castle Coalition's list titled "Government Theft: The Top 10 Abuses of Eminent Domain." The Castle Coalition is a grassroots anti-eminent domain group [www.castlecoalition.org/].

"Eminent domain is the power of government to force people from their family homes, to destroy their businesses," the coalition says on its Web site.

"If individual property owners could stop a (redevelopment) plan, it would render the ability to fix a blighted area impossible," countered Teplitz.

Normal is in the midst of a historic downtown redevelopment plan, and the council created a downtown tax increment financing district in May 2003 to help pay for it. In a TIF district, property assessments are frozen.

Any increase in assessed value that usually comes with improvements in an area is used to help pay for the redevelopment through the life of the district – about 20 years.

Teplitz said downtown Normal qualifies as a "conservation" area under TIF standards. That means at least half of the buildings within the area are at least 35 years old and the area is beginning to show signs of decline. If not checked, those conditions could lead to blight, he said.

Part of the redevelopment plan is a hotel/conference center on land bordered by Fell Avenue on the west, Beaufort Street on the south, Broadway on the east and North Street on the north.

Enter property owner and Castle Coalition member Orval Yarger.

Yarger owns or is part owner of several properties the town needs to accomplish the redevelopment plan.

Yarger, his brother, Bill, and Alec Wade, known as the Alamo II partnership, own 211 W. North St., 213 W. North St. and 207 S. Fell Ave. – properties at the location of the proposed town-owned conference center.

Orval Yarger also owns 103 Broadway, commonly known as the Broadway Mall. The town is eyeing that property for a new Citizens Savings Bank. Citizens is currently at 301 Broadway St., the location of some of the land needed for the downtown hotel.

So far, negotiations to acquire the properties have failed, and the issue could end up in court – as an eminent domain case.

"I am not against redevelopment," said Orval Yarger. "I'm certainly not against the hotel project. But I'm sort of against the way I've been treated."

Yarger maintains he would give the town the land it wants for the conference center if he gets three parcels, including the property where University Christian Church stands, across North Street.

"I never asked for money, I only asked for a land swap," he said. "It's almost the same square footage. But the town said the land he wanted in exchange was too expensive and, besides, the church property wasn't for sale.

"My land isn't for sale either," responded Yarger.

Town officials tell a different story. Mayor Chris Koos said the town has been negotiating with the Alamo II partnership for two years, offering $1.25 million for Waterson Place and 211 and 213 W. North St.

Alamo II partnership countered with an offer of $3 million, he said.

Meanwhile, the town tried to purchase the 103 Broadway property from Eleanor Stubblefield so Citizens Savings Bank could build a new bank. Stubblefield ended up approaching Orval Yarger about buying the property. He paid $290,000 – less than the $305,000 offered by the town.

Yarger said he had tried to purchase the property from Stubblefield for years.

When town officials approached Yarger about buying the same property, he added an adjacent property – Guitar World – and agreed to sell both to the town for $675,000. Guitar World is worth about $100,000, according to town officials, and is not a property the town wants.

But Yarger said, "two pieces are more valuable than just one" and Guitar World includes a recording studio that he built.

The sale did not go through because Yarger said he wanted the other land issue resolved first.

"Eminent domain was never intended to be used to take private property from one to give to another," he said. "It's for public good like roads, interstate highways and intersections."

Like many states, Illinois' interpretation of eminent domain authority has been refined by court cases. One commonly referred to is a 1999 East St. Louis lawsuit – Southwestern Illinois Development Authority vs. National City Environmental.

The ruling in that case somewhat supports Yarger's opinion – that private property can't be taken and given to another private developer for a private project.

However, the case also recognizes exceptions, including taking property to eliminate blight, said Normal Corporation Counsel Steve Mahrt.

Teplitz said eliminating blight is a long-recognized use of eminent domain.

And in a TIF district, private property can be taken to eliminate or prevent blight. "It's not important what the end use is," he said.

Contact Mary Ann Ford at mford@pantagraph.com

Copyright © 2004, Pantagraph Publishing Co. www.pantagraph.com

Eminent Domain Attorneys

8/18/2004

Abusing Eminent Domain to Crush the Landowner

District 21 race takes a turn for the negative
GOP HOPEFUL RIPS RIVAL IN FLIER
By Dan Stober

Gone negative. That's the new direction of the closely watched state Assembly race between tech-rich Republican Steve Poizner and Redwood City Council Democrat Ira Ruskin.

In a mailer sent to Redwood City voters over the weekend, Poizner slammed his opponent, blaming him for the city council's clumsy and expensive use of eminent domain to seize property to make way for a privately owned downtown movie theater.

The ad accused Ruskin of abusing power to crush the landowner, who was described as "the Little Guy, a 75-year-old retiree."

Ruskin called a news conference in Redwood City on Monday to denounce the flier as a "hit piece" that used a fuzzy photo of him and a sensational selection of newspaper headlines to mislead voters.

But Poizner, who was walking precincts in San Jose's Almaden Valley on Monday, said his flier was an appropriate response to Ruskin's invitation for voters to study his record of public service. "This is going to be an ongoing theme in this campaign, to compare my track record and his track record," Poizner said.

It's slightly early in the political season for negative campaigning, said Michael Terris, a Democratic consultant in San Francisco who has run campaigns in Silicon Valley. "To get out ahead of Labor Day and hit the mail with something that would draw a contrast with your opponent would be unusual," he said.

The race in District 21 is being watched by political junkies across the state. It is one of only a handful of legislative races where the outcome is in believed to be in question. Gerrymandering of districts has left the others either safely Republican or Democratic.

District 21 is a carefully drawn Democratic district, but election watchers say a moderate Republican might have a chance, especially a successful entrepreneur willing to spend his own money, which Poizner is. The district includes 13 cities, from San Carlos to San Jose.

Despite denouncing the tone of Poizner's flier, Ruskin did not deny the underlying facts behind its allegations. San Mateo County Superior Court Judge Quentin Kopp ruled in May that the city council's use of eminent domain was illegal. In the end, the city agreed to pay James and Aida Celotti $3 million for their property, well above its normal value, to settle a civil lawsuit.

Ruskin was, however, able to point to a line in the flier that seemed misleading: "Current Mayor Jeff Ira didn't vote for this plan, and with good reason." The implication was that the mayor had voted against the eminent domain process, but he had actually abstained from voting because of a financial conflict of interest, said Ruskin and two other city council members, Barbara Pierce and Jim Hartnett.

"He may want to quibble with a fact or two because he'd like to get the people's attention off the big picture," Poizner said.

Ruskin used his news conference to hammer home the point that his Republican opponent is, in fact, a Republican. The more Poizner has described himself as a moderate, pro-choice, pro-environment Republican, the more Ruskin has attempted to tie him to the White House.

"I have no connection, none, with any campaign other than my own," Poizner said.

http://www.mercurynews.com

Suisun Restores Eminent Domain Power

Note: Two articles appeared on this topic, the first prior to the City Council meeting and the second reporting on what transpired. They are as follows.

Council likely to vote on eminent domain
By Matthew Bunk

The city is threatening to demolish a 98-year-old building on Main Street if the owners don't repair it.

It's also moving forward to restore the power of eminent domain, which would give the city authority to repossess blighted properties.

Both situations stir controversy about whether local governments should have legal authority to take ownership or control of private properties. The matters will be discussed separately at tonight's City Council meeting, starting at 7 p.m.

The City Council recently told the owners of a vacant building at 613 Main Street to come up with a plan to have the building repaired to comply with codes or face having it knocked down. The one-story brick building was marked Monday by a sign that says "Do Not Enter."

Three of the four walls have deteriorated and the floor structure needs to be rebuilt, the city said after inspecting the storefront building in March. It also said the mechanical systems needed repair and were not up to code.

An attorney for building owner Mardell Miller stated both sides were very near an agreement to rehabilitate the building and that Miller was in the process getting people to fix it when the city discontinued talks.

City Attorney Dan Hurst said the owners repeatedly missed deadlines the city set for coming up with a signed plan to deal with the building's problems.

The city also plans to vote tonight on a resolution that would restore power to condemn and take ownership of blighted properties. The eminent domain issue has come up at recent meetings and the city is expected to vote on the issue tonight.

However, that's not what the city is trying to do at 613 Main, City Manager Steve Baker said.

"We would be getting rid of the structure - demolition," he said. "Acquiring the property would be a whole different process and that hasn't been discussed."

Suisun restores eminent domain power
By Matthew Bunk

The city now has the option of purchasing, on a judge's terms, any business property the courts decide could be put to better use.

A City Council decision Tuesday night to restore the power of eminent domain means the city can take ownership of businesses in the redevelopment district - which includes the entire city - and a few apartment complexes as well, if they prove to be a public nuisance.

Councilwoman Jane Day said the city should expand the authority to include all apartment buildings in Suisun City. As it is, only three apartment complexes are vulnerable.

Day called eminent domain "a tool we definitely need on board so that if there are problems we can correct those problems."

The city argues that it's had difficulty getting business owners to fix up blighted properties and needed some method of enforcement. Councilmembers have said they don't want to take over anyone's property unless left with no other choice.

But some citizens, wary of giving up too much authority to government, told the council they thought the eminent domain matter should go to a public vote. The council instead voted unanimously to restore the power, which lasts for 12 years.

"We have a public investment and it's being squandered," Suisun City Mayor Jim Spering said. "Business owners are concerned that their equity is getting sucked out of their property."

http://www.dailyrepublic.com

8/17/2004

Blow to Eminent Domain a Victory For All Property Owners

By Steven Greenhut, The Orange County Register

One of the most persistent myths foisted on society by the political left is that property rights benefit mainly the rich and powerful.

Steven Hill, West Coast director of the liberal Center for Voting and Democracy, aptly expressed this misconception in The Seattle Post-Intelligencer: "The point is that the Bill of Rights and Constitution were really there to guarantee the property rights of the rich and the rich wannabes.''

The nation's inequalities, he added, "are a direct result of - not in spite of, but because of - the priority given by the Bill of Rights and U.S. Constitution to protect the private property of rich individuals and wealthy corporations over basic human rights.''

Yet as a recent Michigan court ruling makes clear, property rights are not primarily about protecting the "rich and rich wannabes.''

They are, first and foremost, about protecting those without political power from those with power. That this sounds counterintuitive only reinforces how far the nation has traveled from the ideas embraced by the founders.

Consider this defense of property rights by William Pitt, the British prime minister in the late 1700s and early 1800s: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail. Its roof may shake, the wind may blow through it - the storm may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.''

That was - and remains - a wonderfully radical idea.

Fast-forward about 180 years to 1981 and the Detroit neighborhood known as Poletown. It was a well-kept, ethnically diverse, working-class neighborhood originally settled by Poles. The area had more than 1,000 homes, 600 businesses, several churches and a hospital.

Nothing wrong with the neighborhood, except that it was in an area coveted by General Motors, which was threatening to build a new Cadillac assembly plant out of state if city leaders didn't use eminent domain - the power of the state to take property by force, upon compensation to the owner - and clear away Poletown.

So Detroit officials, backed by influential business and civic leaders (including the Catholic archdiocese, which sided with the government rather than its own people), argued that Poletown must be destroyed for the economic well-being of all Detroit residents.

The state Supreme Court agreed that the taking was legitimate, based on a questionable U.S. Supreme Court decision that stood in stark contrast to the Constitution's Fifth Amendment.

The Fifth Amendment is clear about the use of eminent domain. The government can use this power, provided that it is for a "public'' use. With some exceptions (i.e., to make way for railroads), the courts generally interpreted public use in the traditional way envisioned by the founders - courthouses, highways, schools, bridges, dams, infrastructure.

But in 1954, in Berman vs. Parker, the liberal Warren court agreed that the District of Columbia could condemn private property and hand it over to other private developers for a private gain provided that the appropriate legislative body (at the time Congress, since the district had not yet gained home rule) deemed that it is proper to do so.

"If those who govern the District of Columbia decide that the nation's capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way,'' ruled the court, in a decision that read more like a chapter in a sociology textbook than a reflection of the founders' wisdom.

In 1950s Washington, there was a great deal of actual blight. By 1981, the courts were saying that blight need not even be found. The mere promise of better economic circumstances for a region is a good enough "public'' use to clear away a neighborhood.

And although the Poletown plant is still in operation, its impact has been far less beneficial than General Motors and Detroit officials had promised.

In recent years, cities across the country have used Poletown to justify the most outlandish schemes. Sometimes courts or political pressures stop them, but only sometimes.

In Cypress, Calif., city officials voted to use eminent domain - they were stopped by a federal court decision - to give Cottonwood Christian Center's property to Costco. They argued that the transfer from Cottonwood to Costco was for a ``public use'' because Costco paid more taxes than Cottonwood.

Garden Grove, Calif., tried to condemn an entire ethnically diverse neighborhood so the city could market the property to a tax-producing theme-park operator.

The City Council backed down in the face of public pressure, but officials there rely heavily on eminent domain (or the threat of it) to transfer properties to developers.

In Lakewood, Ohio, the city tried to bulldoze an entire historic neighborhood so that it could give the prime park front property to a developer, who promised to replace the working-class residents with wealthy, upscale people who would move into new condos and frequent pricey shops. A local referendum put the kibosh on the plan, despite the plan's support from the political establishment.

In New Cassel, N.Y., the city drove a poor, African-American church off of its land to make way for a shopping center. In Atlantic City, N.J., the redevelopment agency tried pushing an elderly widow out of her home so that Donald Trump could build a parking lot for his casino's limousines, but was stopped on a technicality.

In each case, the inspiration was Poletown.

Before Poletown, in Chavez Ravine in Los Angeles, a poor Mexican- American neighborhood was leveled, initially to make way for public housing, but ultimately to create Dodger Stadium.

Those who believe that property rights are mainly for the rich have obviously never thought about these cases, where lower-income people are abused at the hands of important movers and shakers, such as Trump, Costco and condo developers.

Fortunately, on July 31, 23 years after residents of Poletown were driven from their homes, the Michigan Supreme Court unanimously overturned the Poletown decision. It won't do anything for the original victims, but it will stop other cities from abusing people's property rights to benefit other, influential people.

The court blasted the original Poletown decision as a "radical departure from fundamental constitutional principles. ... If one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore' or the like.''

When eminent domain is abused, the rich and powerful take advantage of the poor and powerless.

Only with secure property rights can every property owner, no matter how poor or humble, tell the king (or Donald Trump, or Costco, or some arrogant city manager) to take a hike.

Even liberals ought to see the beauty in that scenario.

www.registerguard.com