Senate weigh on eminent domain: Dateline Alabama (Tuscaloosa AL), 3/24/05

By Kim Chandler

When the City of Alabaster wanted to buy Carrie Spence's land for a shopping mall and city hall site, she didn't have to think long.

"It's our home, and it's paid for. You've been living here all your life and they try to take your land for a Wal-Mart or a Target or whatever. No, get out of here," Spence said.

The city filed a lawsuit against her claiming eminent domain, which lets governments acquire private land for public use, as long as the former owners receive "just compensation." The lawsuit was dropped after other families agreed to sell for a higher price. But policy-makers are grappling with just what constitutes public use and whether cities can condemn private property such as Spence's for retail developments that'd increase the tax base.

A bill pending in the Alabama Legislature says they can't and would prohibit cities from using eminent domain for commercial use.

"Quite frankly, I just think it's wrong to take anyone's private property and give it to a retail establishment," said bill sponsor Rep. Jack Venable, D-Tallasssee.

"Eminent domain is very important. We wouldn't have the interstate highway system if we didn't have eminent domain, but at least that's public use, which is what our constitution intended," Venable said.

Venable said that to his knowledge no Alabama government has taken private property for commercial development.

But he said cases in other states show cities' desire to use eminent domain for land to lure big-box retailers or other commercial developments.

The House of Representatives approved Venable's bill 90-1, sending it to the Alabama Senate for consideration. Some cities argue that eminent domain is a key tool for tackling urban blight: Take it away and you could be left with slums.

"When you've got these run-down areas, one of the ways to clean them up is eminent domain," said Perry Roquemore, executive director of the Alabama League of Municipalities.

Sen. Rodger Smitherman, D-Birmingham, said he plans to tack on an amendment that'd exempt the city of Birmingham. The Fifth Amendment to the U.S. Constitution states that private property shall not "be taken for public use, without just compensation." What exactly defines public use has been a matter for debate.

Other states are grappling with the definition, and the U.S. Supreme Court will soon weigh in. Last year, the court heard the case of a group of New London, Conn., landowners trying to prevent their property from becoming part of a riverfront revitalization project. The Washington-based Institute for Justice, a libertarian group representing the New London holdouts, reported that from 1998 to 2002, there were more than 10,000 threatened or filed condemnations involving private developments.

The Georgia Senate earlier this month approved a bill that would prohibit eminent domain when the use is primarily to improve the tax base or economic development.

Dateline Alabama: www.tuscaloosanews.com