5/09/2005

Fighting The Power To Take Your Home: Washington (DC) Post, 5/7/05

More Owners Are Challenging Government Plans to Seize Land

By Kirstin Downey

Prince George's County [MD] Executive Jack B. Johnson set off a furor in March by warning during a radio broadcast that the county might tear down some crime-riddled apartment complexes if the owners didn't do more to step up security.

Within days, dozens of renters who lived in the apartments had staged rallies in defense of their homes, demonstrating at a government building and one of the apartment buildings. Johnson quickly backed off, but one thing was clear: Even an off-hand mention of the mighty government power to seize people's property set off powerful emotions.

Defending the Neighborhood

Are there rumors that your neighborhood is slated for major change? Are you worried you could lose your home to eminent domain? Here are some tips from the Castle Coalition, a libertarian advocacy group opposing what it calls "eminent domain abuse."
  • Do your research. Go to the local planning department and ask for information about any redevelopment plans in your area, including proposed highway improvements. Call elected officials who represent your area to find out what they know. (Ideally, you should have done this before you purchased the property.)
  • Get copies of all planning documents relevant to your property.
  • Take notes, with dates, including the names, titles and telephone numbers of every official who gives you information.
  • Attend scheduled public hearings on planning issues related to the possible project.
  • Share information with neighbors and others who will be affected by the plans. Consider organizing a group to monitor events and schedule protests if necessary.
  • If you find that your home or business is in danger of condemnation, consult a lawyer who specializes in eminent domain. The Owners' Counsel of America maintains a list of attorneys who focus on property rights issues. Some require hourly payment but others will accept a contingency fee based on the difference in the price you were initially offered and the final price. (Such a payment system would require that you eventually relinquish the property.)
  • Ask questions. What is the timeline for this project? What are the deadlines for challenging eminent domain decisions? When might a condemnation action be filed? How is compensation handled? How much are relocation expenses?

The words Johnson used were "eminent domain," the condemnation process by which government agencies are allowed to take land from property owners. Under the Fifth Amendment to the U.S. Constitution, governmental entities can take private property for public use, as long as the owner is given a fair price, or what the amendment calls "just compensation."

Eminent domain is a phrase that is increasingly cropping up when people talk about land use in the Washington area. In the District, for example, the government has sent letters to 33 property owners telling them it intends to buy their properties to build a baseball stadium in Anacostia. The District is also pushing ahead with its plan to buy 16 properties to redevelop the Skyland Shopping Center in Southeast Washington, with a Target store as the proposed centerpiece. In both cases, the D.C. government has said it will use eminent domain to compel the property owners to sell if they do not do so voluntarily.

In Maryland, 30 to 50 homes would be affected if the long-proposed Intercounty Connector, a highway linking Montgomery and Prince George's counties, were to be constructed. The project has been mired in controversy for 40 years, but may have additional traction now because Maryland Gov. Robert L. Ehrlich Jr. (R) has made it a priority.

And in Virginia, public hearings will be held next week on the proposed Tri-County Parkway, a new 10.5-mile highway that would cross Fairfax, Loudoun and Prince William counties. It is not funded, but if it were to go forward, 13 to 22 houses would be taken.

So how should homeowners react if they find themselves in such a situation?

Most people accept the practice of eminent domain, even if they consider it unpleasant and distasteful, particularly when the government takes the land for something that is clearly a public use, such as a school, a highway overpass or a bridge. They realize millions of people benefit from the land transfer, from children sailing boats at New York's Central Park, to Washington commuters riding Metro to work, to tourists strolling at Baltimore's Inner Harbor, to motorists driving from soccer practice to shopping centers.

But another kind of eminent domain is receiving critical scrutiny. Many municipalities use eminent domain to assemble land for redevelopment, either to revitalize downtowns or to boost tax revenues. A case pending before the Supreme Court, Kelo v. New London , concerns a redevelopment plan in Connecticut; it questions the use of eminent domain when governments take the land from some property owners to make it available to other property owners, alleging that the private use makes the land transfer unconstitutional and illegal. The case's success in reaching the Supreme Court has re-opened a policy debate that started in 1954, when a landmark case involving the redevelopment of Southwest Washington allowed governments to use eminent domain for urban renewal and slum removal projects.

In an interview this week, Washington Mayor Anthony Williams (D) said the outcome of the Kelo case could affect the Skyland Shopping Center project. "It would have severe long-term effects on many government projects," said Williams, who also serves as president of the National League of Cities. "It would jettison" the long-sought shopping center redevelopment, he said.

About 90 percent of condemnations, however, involve properties acquired for purely public purposes, and they make up most eminent domain actions, said James L. Thompson, a Rockville real estate lawyer whose firm has handled more than 200 eminent domain actions over 25 years.

Many property owners who find themselves in the middle of such a land transfer do not object to leaving, but for many others, the process is fraught with emotion. Connecticut nurse Susette Kelo, for example, the lead plaintiff in the case pending before the Supreme Court, has staged rallies and protests, testified and fought a seven-year legal battle to protest the condemnation of her Victorian house to make way for a luxury waterfront hotel and office park. Similarly, homeowners at the site of the proposed Washington baseball stadium and the commercial tenants at the Skyland Shopping Center have denounced plans to relocate them to permit the land to be used in other ways.

Sometimes the wrangling lasts a lifetime. Elizabeth Beall Banks, who died in January at age 93, had spent much of her adult life fighting off efforts to redevelop her 138-acre farm on Route 28 in Rockville, once waving a shotgun at Montgomery County park and planning officials who used the eminent-domain process to claim part of her property for road expansion. As traffic congestion grew over the years, government officials used eminent domain there to widen the Muddy Branch Road and Great Seneca Highway, Merle Steiner, a longtime friend of Banks, said recently.

Nobody knows exactly how many properties change hands each year through government action, partially because so many government agencies — city and county governments, state transportation departments, the federal government, even public utilities — have the power of eminent domain. The transfers often involve small pieces of land, such as a 10-foot strip to permit a wider turning lane for cars pulling onto a highway, and they attract little or no controversy.

The libertarian group that is funding the Kelo lawsuit, the Institute for Justice, which focuses on eminent domain used on behalf of for-profit operations, has studied news reports and court filings nationwide and calculated that from January 1998 to December 2002, 3,722 condemnation procedures were filed by government agencies on behalf of private entities, including big-box retailers such as Target and Costco or for casino parking lots.

The cases typically pit individual rights against public rights, or at least the public rights as some perceive them.

"I wouldn't want eminent domain either, if it were my house," said Lora Lucero, a lawyer with the American Planning Association. "When you're the target of eminent domain, you aren't going to like it. . . . But without eminent domain, we'd hamstring the general public's interest at the expense of one individual."

Many people learn they are at risk of eminent domain when they hear about plans for future development near their homes. Houses near major roads often are included in master plans for highway expansion, but the owners may never know it because the master plans are never funded. They hear the news as a rumor in the neighborhood or in an vaguely-worded article in a local newspaper recounting a recent planning meeting. For homeowners, even the existence of such a plan is worth noting — and for many, worth protesting at forums such as planning meetings.

The eminent domain process varies from state to state and county to county, making it difficult to generalize, but typically the chain of events that results in property loss begins with a letter in the mail. A government employee, sometimes called a "right-of-way agent," contacts the property owner to say his property is needed for a particular purpose, such as a road, and that the agency, the Virginia Department of Transportation, for example, will be sending an appraiser to look at the site and try to establish its value. The property is inspected. Soon after, the property owner is contacted for a meeting.

Most homeowners are incredulous at this point, Thompson said. About 20 percent became "very emotional."

"The first thing they say is, 'Jim, I want you to stop this,' " he said. "They are passionate. . . . Business people look at it in a more objective way. They say, 'Can they do this?' And I say, 'Yes, the law permits them. The question is mitigating the damage and paying compensation.' "

And while some people, like Banks, may be able to hold on to much of their land, for many others fighting eminent domain means fighting to get the most money possible out of the government.

The government entity tells the property-owner how much it is willing to pay. Often that figure appears surprisingly low, Thompson said. But it can be just the opening round of negotiations.

"Many, many times the appraiser for the state appraises many properties for the state," Thompson said. "They get to be favorites because they appraise at low numbers. They come back again and again with low appraisals."

Dana Berliner, senior attorney at the Institute for Justice, said that many property owners are lulled by seemingly sympathetic government officials into believing they will be treated generously.

"Often the city will say, 'Don't worry, we'll take care of you,' and that isn't true," Berliner said. "If you think the local government will take care of you through the goodness of its heart, that's not a good idea."

Not everyone has such a negative experience. Brandt Mensh, managing partner of Let's Connect Wireless, a business in Rockville, was distressed when he learned the townhouse where his firm operated was being taken by the city for the Town Center redevelopment project. But the townhouses were "old and falling apart," and the city paid compensation and relocation costs. He declined to say how much he was paid.

Property owners can boost the purchase price they receive by producing evidence of comparable sales, providing information on valuable home improvements, and hiring an appraiser to give expert testimony about valuation. A lawyer who is experienced in eminent domain questions and has valuable local political connections can help to ensure a better price as well.

"When you get into the process, it can be expensive," said real estate lawyer Steven VanGrack, chairman of the Maryland Real Estate Commission. "Part of the problem is the government has government lawyers, city attorneys, state or county attorneys to pursue this process. The landowner has to pay to hire an attorney. The cost to the government doesn't include legal counsel but the cost to the individual homeowner can be enormous."

One way to keep legal costs down is to find other people in the same situation and agree to share the costs. One-tenth of a legal bill is cheaper than 100 percent of a legal bill.

Another big uncertainty property owners face is how long the process will take. The condemnation timeline varies dramatically from situation to situation, depending on local law, and the power wielded by the individual agency. It can happen within months, or take years to be completed.

The process is often quicker in Maryland, Virginia and the District than in some other states, Thompson said, because "quick take" laws in the three jurisdictions allow the process to happen more quickly than in places where property owners have more time to appeal.

The Maryland State Highway Administration, for example, can take raw land via quick-take within about 90 days after initiation of negotiations. When a case involves a home, the quick-take process takes about three months to a year. Without the right to quick-take, or when the government decides not to use it, the process can take a year or more.

If the price appears about right, however, and the seller is agreeable, the deal can be struck quickly. If the owner says no, there is a public hearing where people can testify. In Maryland, for example, the government agency adopts what is called a "resolution of necessity," which sets forth the reason for the condemnation.

Then the government agency sues in state court. It is also required to post the purchase money it has set aside at the price it intends to pay. Both the property owner and the government present testimony. A jury hears the suit. Two separate issues are in question: whether the property is indeed suitable for the purpose the government has said, and what the price should be. If the property owners lose, they can appeal.

An increasing number, such as Kelo and her eight co-plaintiffs in New London, are fighting longer.

"People are challenging eminent domain now," Berliner said. "As they realize they can and do win, you will see more legal challenges."


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