Eminent domain abuse: The Washington Times, 2/20/05

Commentary

By Timothy Sandefur
You may not know it, but your home is for sale. Across America, government and big business are teaming up to condemn people's homes, and replace them with shopping centers and megastores such as Costco, Ikea, and Home Depot. In fact, from just 1998 to 2003, there were 10,000 reported cases of cities and states condemning or threatening to condemn homes and businesses to make way for private companies to expand.

Government's power to take property against the owner's will is called eminent domain, and it is the subject of a case the U.S. Supreme Court will hear on Feb. 22. In Kelo vs. New London, the court will consider whether the Constitution places any limits on eminent domain.

The Fifth Amendment says private property may only be taken for "public use," which in the past meant highways or government buildings. But in the Kelo case, a Connecticut town decided to "revitalize" by taking several properties and replacing them with a hotel, a health club and a marina, to accompany a new research facility for the Pfizer Inc., the pharmaceutical company. Health clubs and corporate research are private uses, not public uses.

But the city argues "revitalization" would increase tax revenue and "create jobs." And a public benefit, the city says, is all the Constitution requires. The problem with that argument is most businesses benefit the public.

If our homes can be taken away whenever bureaucrats decide somebody else would use them more effectively, our property rights are rendered meaningless.

Consider the infamous Poletown case. In the early 1980s, the General Motors Corp. persuaded the city of Detroit — reeling from recession — to condemn a neighborhood called Poletown (due to the many Polish immigrants there) and sell it cheap to GM to build an auto factory.

The Michigan Supreme Court held the condemnation was legal: If the government declared a condemnation would benefit the public, the courts would not stand in the way. In a whirlwind of litigation that lasted only a few weeks, neighbors watched as their community was pulverized.

The Poletown decision led to an epidemic of eminent domain abuse. In 1999, the city of Merriam, Kan., condemned a Toyota dealership to sell the land to a BMW dealer instead.

That same year, Bremerton, Wash., condemned 22 homes to resell the land to private developers. In one notorious case, billionaire Donald Trump convinced Atlantic City, N.J., to condemn an elderly widow's home so he could build a limousine parking lot.

Unfortunately, the victims of eminent domain are most often the elderly, the poor and minorities. They lack the money and political power to persuade the government to respect their rights. But corporate lobbyists are very effective at convincing cities to give them someone else's land on the pretense it will create jobs and improve the neighborhood — especially when it will increase the city's tax base.

Fortunately, things may be changing. Last year, the Michigan Supreme Court overturned its Poletown decision:

"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, the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore,' or the like."

Now it's up to the U.S. Supreme Court to end eminent domain abuse nationwide. When the Kelo case is argued before the court, the justices will be asked a simple question: Does "public use" mean the government can take people's homes and small businesses and resell the land to Pfizer, Donald Trump or other private parties?

The answer should be no. All property owners, rich or poor, should have the same right to be secure in their homes and businesses. Otherwise, our property rights will be only permissions granted by the government — revokable at will.

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The Washington Times: www.washingtontimes.com

Timothy Sandefur (Tmsandefur@aol.com)is a lawyer with Pacific Legal Foundation, a public interest legal organization dedicated to defending private property rights and individual freedom. Mr. Sandefur wrote the Foundation's amicus brief supporting the property owners in Kelo vs. New London.