Court eyes eminent-domain rules: (Harrisburg PA) Patriot-News, 5/8/05

Decision could have impact on HIA case

By Joel Berg

Under current law, Harrisburg International Airport likely would prevail in its legal battle to take private land from a nearby business, observers said. But, a U.S. Supreme Court decision expected in June could shift the balance of power against the airport.

The right of eminent domain — a government's ability to take privately owned land for a public purpose — is part of the Fifth Amendment to the U.S. Constitution. The issue before the court centers on the grounds for exercising that right.

Few people question government's authority to seize private land to build a road, a bridge or even a new airport runway. That power provokes greater controversy when it drives out businesses or homeowners to clear a path for economic development, as in the case at HIA.

In March, airport officials said they wanted to take over Cramer's Airport Parking, a neighboring business, and develop the land for privately run, airport-related operations, such as a cargo base or maintenance facility. The Susquehanna Area Regional Airport Authority, which owns HIA, has offered to pay about $1.57 million for the property.

The Cramer family objects to the move. It has cited, among other issues, antitrust allegations that the airport wants to knock out a competitor to its new parking garage.

"We're in business. We intend to stay in business. We want to remain in business," said Solomon Cramer, son of owner Stanford Cramer and a manager at the company. "This isn't a matter of not being happy with their offer or anything else. We don't want to sell."

Fred Testa, HIA's aviation director, has said the airport's intent isn't to shut out a rival. "Anything that the Cramers are claiming in the lawsuit will be answered in the lawsuit," he said.

The Cramers face an uphill struggle, given the courts' traditional attitude toward the use of eminent domain, attorneys said.

Ever since a Supreme Court case in 1954, judges have not interfered when governments and public authorities say a particular seizing of land serves a public purpose, said Joel Burcat, an attorney in the Harrisburg office of law firm Saul Ewing. Typically, courts decide only how much money a landowner is due in return for losing property.

Burcat believes courts should be more skeptical.

"There have been many instances over the years where condemning bodies have taken properties, they've said that there is a public purpose and, in reality, it was a very shady public purpose," Burcat said. "The public purpose was putting in a hotel. The public purpose was keeping a football team. The public purpose was replacing an old department store with a new department store."

Depending on its outcome, the case before the Supreme Court could give judges a bigger say in whether a public purpose is being served, Burcat said. He questioned whether the airport's move to take Cramer's serves a true public purpose.

The Supreme Court case involves a homeowner named Susette Kelo who is fighting an economic development plan in New London, Conn. Public officials condemned a residential neighborhood, which includes Kelo's home, and plan to turn the property over to a private developer. The developer is expected to bring in new businesses, create jobs and provide more tax revenue for the city.

If the court rules in favor of Kelo, the Cramers and other landowners might have more leeway in resisting eminent domain, Burcat said. He filed a brief in the case on behalf of a client in York County, the Kohr family, whose farmland is being sought by county officials for a park.

"After 50 years, for the courts to even agree to hear a case on this subject says that they must be seriously reconsidering their decision," Burcat said. "Otherwise, why would they take it?"

John Echeverria expected the court to stick with tradition. He is an attorney with the Georgetown Environmental Law and Policy Institute in Washington, D.C., and filed a brief in the Kelo case in favor of New London.

"The long-standing Supreme Court precedent has provided strong support for the use of eminent domain by government to achieve public purposes, including when private property is transferred to other private parties," Echeverria said.

An airport serves a public purpose, he said. If the airport needs land for related operations, taking the land is a sensible choice, even if the land goes from one private user to another.

The Supreme Court is unlikely to reverse precedent, agreed David Lehman, an attorney with McNees Wallace & Nurick in Harrisburg. But, he said, "These are strange times politically. Who knows what can happen."

No government or public authority exercises the right lightly, said David Black, president and chief executive officer of the Harrisburg Regional Chamber and the Capital Region Economic Development Corp.

But, he said, "I think it's something that probably has to be done to look out for the long-term interests of the airport, keeping it competitive and helping it become the economic engine that it can and should be for our region."

How land is used before and after it is taken helps to determine whether a public purpose is being served, said Neal West, general counsel for Harristown Development Corp. In the 1970s, the organization had used eminent domain to redevelop downtown Harrisburg.

"At some point, you do cross the line," West said.

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