Eminent domain case may have imminent implications: Peoria (IL) Journal Star, 2/24/05

Supreme Court considers seizure of private land

By John Sharp

Even though Joyce and Jamel Bourazak settled with the city of Peoria for $2.2 million in 2001, the couple did not want to sell their 91-year-old cleaning business so O'Brien Field could be built. But they had to, Jamel Bourazak said Wednesday, or face what one Peoria official calls a "10,000-pound gorilla."

That gorilla was eminent domain, the government's power to condemn private property for public use.

"It leaves a bitter taste in your mouth the way they do it," Bourazak, 72, said.

A case before the U.S. Supreme Court might lessen the emotional pain experienced by the Bourazaks and other landowners when a government body requests their private property for another private development.

The nation's highest court heard arguments Tuesday in a case from New London, Conn., where a group of homeowners sued the city for taking their property for an ambitious economic development. The city wanted to raze private homes to make way for a riverfront hotel, health club and offices.

The court's decision will consider whether the government's power in forcible seizure cases have gone overboard.

The issues also question whether a government is serving a public purpose when it uses eminent domain to take land. An attorney representing the Connecticut residents argued that government cannot take private property from one owner and provide it to another just because the new commercial project will boost a city's finances.

While a court decision isn't expected until summer, some Peoria-area attorneys are bracing for what they believe could be sweeping changes to how governmental seizures of private property are handled.

Peoria attorney Joe VanFleet said if the high court's order is retroactively applied, it could have an impact on the landowners who fought with the city more than three years ago before privately owned O'Brien Field was constructed.

"I believe the most important consideration . . . is whether they issue an order that retroactively applies to past issues," he said, adding it's "impossible" to predict the ruling's effect before its rendered.

The Fifth Amendment of the U.S. Constitution prohibits taking private property for public use without just compensation. The New London case, however, is not about the amount of compensation being offered, but whether the government should take the property at all.

It's also strikingly similar to the case the Bourazaks faced when Eagle Cleaners was razed so O'Brien Field could be built along Jefferson Avenue.

"People always get the impression that you just want the money," Joyce Bourazak said. "But what you really want is your business."

Besides the Bourazaks' case, other high-profile local cases include MidTown Plaza along Knoxville Avenue.

In that case, many residents struck deals with the city after receiving notices in the mail that their property was the future site of a shopping center.

The cases were all settled before eminent domain could be used, although some of the residents left with bitterness. One older woman even said in 2001 that she would prefer to die before development occurred.

Meanwhile, attorneys said the court's ruling will probably not affect most of the typical eminent domain cases, which involve extension of roads, public utilities, parks and schools.

Locally, projects like the reconstruction of Interstate 74, Camp Street in East Peoria and Veterans Drive in Pekin will be unaffected, the attorneys said. Each of those projects has required the municipality to seize private property so the projects could move forward.

Peoria Journal Star: www.pjstar.com