By Tom Joyce
The Fifth Amendment of the United States Constitution concludes with: "... nor shall private property be taken for public use, without just compensation."
So there it is — a provision allowing for the government to take private property, expressed as a kind of embarrassed-throat-clearing negative. And to this day, government entities still take private land. Yet nobody seems to do it with a great deal of prideful enthusiasm.
In a recent deposition regarding the history of York County's attempts to take a former portion of Lauxmont Farms in Lower Windsor Township, Mark Platts, executive director of Lancaster-York Heritage Region, several times uses the phrase "last resort" to qualify the phrase "eminent domain."
Yet Platts still insists that the potential public benefit of obtaining the land justifies government exercising its power to do so without the consent of the owner, so long as the owner is compensated.
"Eminent domain has been used to preserve open space, parks and historical sites for 200 years now," Platts said.
But developer Peter Alecxih Jr., a builder who is resisting the county's attempts to take his land known as the "Highpoint," argues that need isn't compelling enough. And he'll never get the same kind of money from government compensation as he would have received from developing the land, as he originally planned.
"What I'm saying is the county has been capricious, they've been arbitrary, and they've dealt with me in bad faith," Alecxih said.
York County commissioners voted 2-1 in May to take Alecxih's property by eminent domain for a proposed park, known as the Susquehanna Riverlands Preservation Project. Alecxih has objected; he wants to build 51 homes at Highpoint.
York County officials want to acquire part of neighboring Lauxmont Farms for the park as well. The Kohrs, the family that owns that property, remain in reluctant negotiation with the county.
The nation's courts are still feeling their way around the issue of eminent domain, according to Mary Lynn Pickel, director of legislative services for the National Association of Home Builders.
Pickel said that any dispute concerning eminent domain comes down to two basic issues: Whether the public necessity is compelling enough to justify the government's taking of private property, and whether the property owner is being compensated what the property is worth.
By far, the majority of eminent domain disputes are about the latter issue, Pickel said.
Many states, including Pennsylvania, have a legal formula for determining compensation in eminent domain disputes, Pickel said. But the issue of what constitutes public necessity can still be tricky.
For example, the U.S. Supreme Court is now considering a case in Connecticut, Kelo vs. New London, in which the issue is whether the government has the authority to seize private property and turn it over to a developer for the ostensible reason of boosting the local economy.
Pickel wouldn't comment specifically on the dispute between the county and Alecxih. But she said there is legal precedent for taking land in order to build a public park.
"A park is a public use," she said. "That's pretty standard."
Alecxih said that for the time being, he's contesting the attempt to use eminent domain on the issue of whether it constitutes public use. If he eventually loses the case on that argument, then he'll contest it on the basis of fair compensation.
Even if the county compensates him for the $17 million he contends the land is worth, Alecxih said, that won't reflect the amount he could have received once houses were built on it.
He said, however, that the argument against taking land simply in the interest of building a park is compelling enough in itself.
"Where's the survey from York County residents saying they need a park?" he said.
Platts, however, said that anybody who has actually seen the land in question and the natural beauty it overlooks wouldn't argue against the compelling public need for preserving it.
"Once you visit the site and see the uniqueness of it, you see the reason why people think it's so important," he said.
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