Getting a primer in eminent domain: Somerville (MA) Journal, 2/3/05


By Roger Kolb

The paths to expertise are many, but they usually originate at a place called youthful experience.

That went through my head the other day as I sat in the living room of Highland Avenue's Jim Campano. Campano, a self-described street guy who's more likely to know the definition of "sowsky" than "syzygy," is an expert on something you wouldn't figure him for in a million years. But an expert he is, someone whose views are eagerly sought in private conversation, on college campuses and by nationwide political action groups.

Campano is an authority on the phenomenon known by the legal and not particularly grammatical phrase, "eminent domain." As I understand it, the term originated in the Middle Ages. Before legislation became the responsibility of parliaments and congresses, the king was the preeminent institution in the land, and the entire country was his personal domain. If His Excellency coveted your property badly enough, you, your spouse, kids, pigs and chickens would soon find yourselves out on the street. But with the slow growth of democracy and individual property rights, that changed. The U.S. Constitution, for one, guaranteed property rights and declared that property could only be taken away from the citizen after "due process of law." As interpreted by the courts, the state had to have a compelling reason to purchase your house or business, and the reason had to take the form of a desperately needed public works project - road, bridge or school - from which everyone could theoretically benefit.

"All that changed in 1954," said Campano, "in the Supreme Court decision Berman vs. Parker." A Pandora's box was opened, one that our founding fathers would have abhorred, he continued, "when the court changed one little word in its definition of "eminent domain." It changed the phrase "public use" to "public purpose." And a few years after that, "public purpose" became "public benefit." "Public benefit" has meant that a local government can take property away from one private home or business owner and give it to another."

"Why would it do that?" I asked.

"The mayor, either to keep a campaign promise or because he faces re-election, has to keep property taxes down. He studies your street and learns that you and your neighbors' annual tax bill, combined, is $98,000. Hell, ninety-eight grand is chicken feed compared to what the city could get if your street had a Wal-Mart and a Home Depot on it. Next, someone from City Hall walks up and down your block and notices that number 12 has paint peeling off and that number 28 has a lot of junk thrown around in the driveway. He recommends to the mayor that your street be declared blighted - "blight" being a word you hear a lot in eminent domain discussions. The city publishes a tiny announcement in some section of the local newspaper no one ever reads. It says that your street, now a slum, is being taken and that everyone has to be out by July 1. A few weeks later, an official from City Hall knocks on your door and reminds you that you have exactly one month to vacate. Then he says the city is prepared to pay you $25,000 for the house or business you probably could get $300,000 for on the open market."

Campano is himself a victim of eminent domain. He was a teenager in Boston's West End in 1958 when, four years after the Berman vs. Parker ruling, the entire neighborhood was gutted to make way for privately owned Charles River Park.

"Surely the situation you describe," I said to him incredulously, "doesn't happen in the United States."

"That's what Don Hewitt, the producer of '60 Minutes,' said two years ago," Campano observed. "In Lakewood, Ohio, the mayor was trying to kick residents out of a lovely neighborhood to make way for luxury condos. An anti-"public benefit" activist from the Institute for Justice made phone call after phone call to '60 Minutes,' but no one would pay any attention to him. Finally, he got through to Hewitt himself, who said he was shocked to find out that this could go on in the U.S."

"'60 Minutes,'" Campano continued, "ended up doing a story about it, a story that woke a lot of people up. The mayor had declared the neighborhood blighted because a few houses had paint peeling off and because none had an attached garage. When the '60 Minutes' people pulled up in front of the mayor's house to interview her, guess what they found. The mayor lived in a house that had paint peeling off, and that didn't have an attached garage!"

Somerville Journal: www2.townonline.com/somerville