Public Power for Private Gain: Reader's Opinion, 6/26/05

By Kathy Tripp

Until recently, “public use” was understood by everyone – courts, local governments, and the average citizen – to have an established meaning. Eminent domain was used only for projects that would be owned by and open to the public – things like roads, hospitals and public buildings.

In the past several years, things have, drastically, changed. Now, state and city officials think they can condemn anything for any reason. They, freely, use eminent domain to benefit all kinds of private parties - as is the case with city officials in Sunset Hills, who, seemingly, are giving this developer anything he asks for- at taxpayer expense. Novus Development will make millions of dollars, while homeowners in Sunset Manor will end up assuming huge mortgages to buy less home than they already own.

Residents in Sunset Manor have lived through years of emotional hell and uncertainty that, inevitably, means nothing to their elected officials. City officials have paraded two different developers through Sunset Manor in the past six years in an attempt to rid itself of an unwanted neighborhood. Communication from residents all over Sunset Hills voicing opposition to this mall has been ignored by city officials. As well, city officials did a tremendous disservice to the residents by posing the same building restrictions for lots averaging 5300 sq. ft as are imposed for 7500 sq. ft. lots - an obvious intent to stunt growth in a neighborhood where property values, inspite of this, still continue to grow.

It is one thing to condemn an abandoned building - all would, certainly, understand that - but to sabotage an area, continually, for years - changing street structures and leaving them to crumble, allowing commercial buildings to be built in residential areas that are not built to conform with existing ordinances, and by seizing the property of tax paying citizens who work hard to comply with government ordinances and rules is a vastly different and ominous concern.

In February, the US Supreme Court heard a case that seeks to limit this government power. With respect for justice, Sunset Hills City officials should have awaited the decision from the Supreme Court before it, recklessly, proceeded to grant Novus Development, (or Novus Equities, or Novus (fill in the blank) LLC.) approval on a shopping mall that, experts say, cannot work. At the very least, city officials should have read some of these findings. Instead, they relied on their own wills and trusted the developer - the very same developer whose litigious past should have been, extensively, questioned.

Sometimes, areas are declared blighted that have no blight but might become blighted in the future. Such is the case for Sunset Manor. In Sunset Hills, there are many smells of conflicts of interest. Imagine that one company can complete a study of blight, issue requests for proposals, update zoning ordinances and the city’s comprehensive land use plan, while being paid to “conduct inspections over several years of properties” that the city has no invoices for. Someone had to pay for those inspections.

The simple fact is that Sunset Hills is allowing the developer to use force to replace middle-income citizens with richer ones and small businesses with larger ones. The “jobs and taxes” justification gives an unlimited field for exercise of government power and an even greater chance to abuse it. There is something very wrong with this. This is, as a Supreme Court Justice called it in the 1700s, a “despotic power.”

The Framers of the U.S. Constitution were, keenly, aware of this potential for despotism, and that’s why they placed two vital constitutional limits on eminent domain power. First, government cannot take land without paying for it; “just compensation” must be paid. Second, government may take property only for “public use.” So, how did the words “just compensation” and “public use” become so diluted? How did the word “blight” become a word with a “made up as you go” definition?

Sunset Hills city officials determination of blight defies what any normal person would call blight. They say that the land is not being used to its full potential - in other words, someone else wants to build something more profitable there. That “someone else” will help quench the hunger for tax dollars, added personal incentives, and subsidies.

Power without any checks, inevitably, leads to abuse, and eminent domain is certainly no exception. Cities can offer other people’s property to lure or reward favored developers. Developers love eminent domain because they don’t have to bother with negotiating for property; they can pick anywhere they want, rather than anywhere they can buy. It’s just easier to take property by force or threat and the compensation they have to pay is, usually, less than they would pay on the open market.

Sunset Hills City officials are, clearly, abusing the power of eminent domain and must be held accountable. Tax payers should be given the opportunity to vote on specious projects that could, potentially, end up placing the burden of payment in their laps.

Several municipalities have challenged redevelopment and won, thus averting threats of eminent domain. Eminent domain abuse won’t stop by itself. It will take community activism and a constitutional commitment by politicians and judges, but this will not happen in time to save Sunset Manor.

Kathy Tripp: imdadoc@charter.net